Courthouse News Serv. v. Schaefer

Decision Date20 February 2020
Docket NumberCivil Action No. 2:18-cv-391
Citation440 F.Supp.3d 532
Parties COURTHOUSE NEWS SERVICE, Plaintiff, v. George E. SCHAEFER, in his Official Capacity as the Clerk of the Circuit Court for the City of Norfolk; and Jacqueline C. Smith, in her Official Capacity as the Clerk of the Circuit Court for Prince William County, Defendants.
CourtU.S. District Court — Eastern District of Virginia

Conrad Moss Shumadine, Willcox & Savage PC, Norfolk, VA, Bryan Harrison, Pro Hac Vice, Heather Goldman, Pro Hac Vice, William Hibsher, Pro Hac Vice, Brian Cave Leighton Paisner LLP, New York, NY, for Plaintiff.

Michael Gordon Matheson, William Daniel Prince, IV, Thompson McMullan PC, Richmond, VA, for Defendants.


Henry Coke Morgan, Jr., Senior United States District Judge

This case is brought under 42 U.S.C. § 1983, filed by Courthouse News Service ("Plaintiff"), and asks this Court whether George E. Schaefer ("the Norfolk Clerk") and Jacqueline C. Smith ("the Prince William Clerk") (collectively, "Defendants" or "the Clerks") deprived Plaintiff of its qualified First Amendment right to access newly-filed civil complaints. The Court held a bench trial, commencing on January 31, 2020, and FOUND that (1) the First Amendment guarantees a qualified right to access newly-filed civil complaints contemporaneously with their filing, and (2) that during the months of January of 2018 through June of 2018 and for a period of time thereafter, Defendants deprived Plaintiff of that right. The Court hereby ISSUES this Opinion and Order pursuant to Federal Rule of Civil Procedure 52(a) to further explain its findings of fact and conclusions of law. Any item marked herein as a finding of fact which may also be construed as a conclusion of law is hereby adopted as such. Any item marked herein as a conclusion of law which may also be construed as a finding of fact is hereby adopted as such.


1. Plaintiff is a nationwide news service that reports on civil litigation in state and federal courts throughout the United States. See Trial Tr. 33:14-20 (Girdner). Plaintiff was founded in 1990. Trial Tr. 35:11-12 (Girdner). It competes with several other nationwide news services in providing similar data.

2. Plaintiff has more than 2,200 subscribers nationwide for its subscription-based publications. In addition to law firms, Plaintiff subscribers include news and entertainment media outlets, academic institutions, publicly traded companies, government entities, and non-profit organizations.

3. Plaintiff's publications include its New Litigation Reports, which contain staff-written summaries of newsworthy new civil complaints. Doc. 77 ("FPTO") at 1-2. The New Litigation Reports is a daily publication that focusses on complaints against businesses and government entities, and any other civil lawsuits that may be of interest to Plaintiff's subscribers. FPTO at 1-2, Trial Tr. at 41:6-22 (Girdner). Legal news, like all other news, has a short shelf-life. Accordingly, it is important for news providers to have contemporaneous access to public documents. Trial Tr. 56:12-19 (Girdner).

4. Plaintiff publishes two daily New Litigation Reports for courts in Virginia. The Virginia Report includes coverage of the Circuit Court for Prince William County, Virginia, among other state and federal courts. FPTO at 2. The Southern Virginia State Report includes coverage of the Circuit Court for Norfolk, Virginia, among other state and federal courts. FPTO at 2; see generally P45; P46.

5. Among Plaintiff's other publications is the Daily Brief, which covers published, nationwide appellate rulings, including all U.S. Supreme Court and federal circuit decisions, as well as significant rulings from the federal courts, including the two Districts in Virginia.

6. Plaintiff also publishes a publicly available website,, which features original news reports and commentary written by Plaintiff's staff and which is read by hundreds of thousands of people each month. Trial Tr. 44:19-46:7 (Girdner); see generally P27.1

7. Plaintiff's employs reporters across the country who are assigned to cover particular federal and state courthouses. Among their duties is reviewing and summarizing new civil complaints for the New Litigation Reports and writing stories for the website. The CNS reporter covering the Prince William Circuit Court, Joan Hennessey, generally visits the court at the end of the day, usually arriving at approximately 4:30 p.m. FPTO at 4. The CNS reporter covering the Norfolk Circuit Court, Jocelyn Rardin, generally visits the court at the end of the day, usually arriving after 4:00 p.m. FPTO at 4.

8. Traditionally, members of the press covered new litigation in major metropolitan areas around the country by sending reporters to the courthouse towards the end of each day to review civil complaints that had been filed that day. Trial Tr. at 35:2-10, 36:13-22 (Girdner).

9. From Plaintiff's founding in 1990, its reporters worked alongside reporters from newspapers and other media, reviewing each day's complaints across the country, which court staff provided to the press as a matter of course. See Trial Tr. 34:25-36:12; 37:6-38:2; 38:16-39:22 (Girdner).

10. Plaintiff competes with companies such as Thompson Reuters, LexisNexis, and Bloomberg. Trial Tr. 46:21-25 (Girdner).

11. Other media outlets and academic institutions rely on Plaintiff to learn about newly-filed litigation. P4, P3. Plaintiff has been credited as the original source of reporting by newspapers, legal publications, magazines, television, radio, and online media. Trial Tr. 49:616 (Girdner); P5.

12. Plaintiff, and other members of the press and public, have historically enjoyed a tradition of court clerks making most newly-filed civil complaints publicly available on the day that they are filed. Trial Tr. at 35:2-10, 36:13-22 (Girdner).


13. In Virginia, Circuit Court Clerks derive their authority from the Virginia Constitution and operate independently. FPTO at 3. Clerks of Court are elected officials. See id.

14. The elected Clerk of the Circuit Court for the City of Norfolk is George E. Schaefer. FPTO at 3. Mr. Schaefer was elected in 2003 and re-elected in 2011 and in 2019. FPTO at 3.

15. The elected Clerk of the Circuit Court for the County of Prince William is Jacqueline C. Smith. Ms. Smith was elected in April of 2017. FPTO at 3. As the Clerk of the Circuit Court for the County of Prince William, Ms. Smith's office also serves the City of Manassas, Virginia and the City of Manassas Park, Virginia. Trial Tr. 374:20-25 (Smith).

16. Under Virginia law, Defendants are the custodians of their courts' records, including civil complaints. Trial Tr. 330:5-17; 332:1-3 (Schaefer); 376:12-25; 395:9-11 (Smith).

17. As circuit court clerks, Defendants are responsible for developing and implementing the policies and procedures for operating the Prince William Circuit Court Clerk's Office and the Norfolk Circuit Court Clerk's Office, respectively, including the receipt and maintenance of civil court records. FPTO at 3; e.g., Trial Tr. 404:12-17 (Smith).

18. Defendants are responsible for the administration of civil court records, and for ensuring that those records are maintained and available to the public for inspection and examination. Trial Tr. 330:5-17 (Schaefer); 376:12-25; 395:9-11 (Smith).

19. Defendants act through their employees, and delegate to their employees the responsibility of responding to requests for court records, including new civil complaints, and the responsibility of ensuring that those records are maintained and available in a timely manner to the public for inspection and examination at their respective courts. E.g., Trial Tr. 361:23-362:21 (Schaefer).


20. In either Clerk's Office, a person seeking to file a civil complaint may do so by delivering a hard-copy, paper document to the Clerk's Office by hand delivery or mail delivery, or by electronically filing the document. FPTO at 4-5. A pleading is considered filed when it is physically delivered to the clerk and the fee is paid. See Alexandria Redevelopment & Hous. Auth. v. Walker, 290 Va. 150, 772 S.E.2d 297, 300 (2015).2

21. The Clerks utilize several technology platforms when docketing a complaint received in paper or electronic form, including the Circuit Case Management System ("CCMS"), Case Imaging System ("CIS"), Officer of the Court Remote Access ("OCRA") system, the Financial Accounting System ("FAS"), and the Virginia Judiciary E-Filing System ("VJEFS"). FPTO at 3-4. Additionally, each Clerk offers public access terminals at which any member of the press or public may review filings scanned into CIS. FPTO at 4. Both Clerks maintain a "paper on demand" policy, meaning that, with limited exception, all files are maintained in electronic format. See, e.g., Trial Tr. 383:9-14; 387:9-22 (Smith).

22. VJEFS is the system used by attorneys to electronically file ("e-file") civil cases in certain Virginia circuit courts. VJEFS records are maintained by the Office of the Executive Secretary of the Supreme Court of Appeals of Virginia ("OES"). FPTO at 4. It is not administered or maintained by the Norfolk Clerk's Office or the Prince William Clerk's Office. FPTO at 4.

23. OES, in its capacity as the administrator of the Virginia circuit courts, maintains filing data for cases filed in the circuit courts using the OES technology applications. This filing data (the "OES Filing Data") comes from data logs from: CCMS, CIS, VJEFS, FMS, and the credit card processor for e-filed cases. FPTO at 4.

i. Prince William Procedure

24. A new civil complaint filed in paper at the Prince William Circuit Court goes through several stages before it can be viewed on the public access terminals: (1) initial intake; (2) Circuit Court Case Management System ("CCMS") data entry; and (3) scanning. Trial Tr. 381:11-12 (Smith)...

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