Courthouse News Serv. v. New Mex. Admin. Office of the Courts, CIV 21-0710 JB/LF

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: James O. Browning, UNITED STATES DISTRICT JUDGE
• Citation: 566 F.Supp.3d 1121
• Parties: COURTHOUSE NEWS SERVICE, Plaintiffs, v. NEW MEXICO ADMINISTRATIVE OFFICE OF THE COURTS; Administrative Office Director Arthur W. Pepin; New Mexico First Judicial District Court Clerk's Office and the First Judicial Court Clerk Kathleen Vigil, Defendants.
• Docket Number: CIV 21-0710 JB/LF
• Decision Date: 08 October 2021

566 F.Supp.3d 1121

COURTHOUSE NEWS SERVICE, Plaintiffs,
v.
NEW MEXICO ADMINISTRATIVE OFFICE OF THE COURTS; Administrative Office Director Arthur W. Pepin; New Mexico First Judicial District Court Clerk's Office and the First Judicial Court Clerk Kathleen Vigil, Defendants.

No. CIV 21-0710 JB/LF

United States District Court, D. New Mexico.

Filed October 8, 2021

566 F.Supp.3d 1126

Gregory P. Williams, Peifer, Hanson, Mullins & Baker, P.A, Albuquerque, New Mexico -- and -- John K. Edwards, Jackson Walker, Houston, Texas -- and -- Patrick J. Rogers, Patrick J. Rogers, LLC, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Erin Elizabeth Lecocq, Assistant Attorney General, Nicholas McDonald, New Mexico Office of the Attorney General, Attorneys for the Defendants.

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Plaintiff Courthouse New Service's Motion for Preliminary Injunction, filed July 30, 2021 (Doc. 2)("PI Motion"). The Court held a hearing on the PI Motion on September 28, 2021. See Clerk's Minutes, filed September 28, 2021 (Doc. 29). The primary issues are whether: (i) the Court should abstain from adjudicating this case under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) ; (ii) the Plaintiff Courthouse News Service ("Courthouse News") has a right under the First Amendment to the Constitution of the United States of America to access non-confidential civil complaints; (iii) if there is such a right, (a) when it attaches,

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(b) what is its scope, (c) what level of scrutiny is appropriate; (iv) whether the Defendants have likely violated Courthouse News’ First Amendment right of timely access; and (v) whether the Courthouse News is entitled to a preliminary injunction ("PI") to prevent the Defendants from continuing to violate Courthouse News’ rights. The Court concludes that: (i) the Court will not abstain under Younger, because an injunction would not interfere with an ongoing state proceeding; (ii) there is a qualified right of timely access to civil complaints which (a) attaches upon submission of a complaint, (b) is defined in light of traditional access times, (c) is subject to "more relaxed" or "rigorous" scrutiny; (iii) by not always allowing Courthouse News to access newly filed civil complaints within five business hours after their submission, the Defendants have violated Courthouse News's First Amendment right of timely access as defined by traditional access standards; (iv) Courthouse News is entitled to a preliminary injunction enjoining the Defendants from disallowing press or public access to newly filed non-confidential civil complaints for longer than five business hours, but is not entitled to a preliminary injunction which gives them pre-processing, on-receipt, or immediate access to newly filed non-confidential civil complaints; and (v) Courthouse News will not be required to secure a bond. The Court, therefore, grants in part and denies in part Courthouse News’ request for a PI.

FINDINGS OF FACT

" ‘[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.’ " Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d 1174, 1179 (D.N.M. 2011) (Browning, J.)(quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009) )(alteration in Herrera v. Santa Fe Public Schools only). See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ("[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits."); Firebird Structures, LCC v. United Bhd. of Carpenters and Joiners of Am., Local Union No. 1505, 252 F. Supp. 3d 1132, 1140 (D.N.M. 2017) (Browning, J.). The United States Court of Appeals for the Tenth Circuit notes that "when a district court holds a hearing on a motion for preliminary injunction it is not conducting a trial on the merits." Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, "[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings." Heideman v. S. Salt Lake City, 348 F.3d at 1188. Thus, while the Court does the best it can to make findings from the record that it has and in the short time that it has to make findings, these findings of fact are only to determine whether to issue a PI. These facts do not bind the Court or the parties at trial. Accordingly, the Court finds as follows:

1. The Parties.

1. Courthouse News is a California corporation with its principal place of business located in Pasadena, California. See Plaintiff's Original Complaint for Preliminary and Permanent Injunctive and Declaratory Relief ¶ 8, at 3, filed July 30, 2021 (Doc. 1)("Complaint").

2. Courthouse News "is a nationwide news service founded almost 30 years ago," which "employs approximately 240 people, most of them editors and reporters, covering state and federal trial and appellate courts in all 50 states in the United States." Complaint ¶ 8, at 3.

3. Courthouse News has "more than 2300 subscribers nationwide," including

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the Associated Press and The Wall Street Journal. Complaint ¶ 15, at 6.

4. Courthouse News "publishes a free public website, featuring news reports and commentary" at www.courthousenews.com. Complaint ¶ 12, at 5.

5. Courthouse News covers "new civil cases, general jurisdiction cases against any business or public entities primarily," but does not "cover domestic or criminal or probate [cases]," nor does it "cover cases against only individuals." Transcript of Hearing at 6:20-7:2 (Girdner)(taken September 28, 2021) filed October 5, 2021 (Doc. 28)("Tr.").

6. Courthouse News publishes the "Daily Brief," a "subscription-based report on appellate rulings and select trial court rulings throughout the nation." Complaint ¶ 13, at 5.

7. In addition, Courthouse News publishes "subscription-based reports on new civil actions called ‘new litigation reports,’ " which contain "staff-written summaries of significant new civil complaints, and are sent to subscribers via email each evening." Complaint ¶ 13, at 5.

8. Courthouse News has a new, subscription-based litigation report for New Mexico called, the "New Mexico Report," which covers civil complaints filed in the United States District Court for the District of New Mexico, "in addition to civil complaints filed in the county district courts of New Mexico." Complaint ¶ 13, at 5.

9. Litigation reports such as the "New Mexico Report" "primarily cover new civil complaints filed against business institutions and public entities," and do not cover family law, probate, or criminal matters. Complaint ¶ 17 at 6.

10. Courthouse News does not review sealed complaints or those filed in non-public categories. Complaint ¶ 17 at 6.

11. Courthouse News has been reporting on new civil complaints filed in New Mexico "since 2005, when it began covering the U.S. District Court in New Mexico and the state district courts in Santa Fe and Albuquerque." Complaint ¶ 18, at 7.

12. William Girdner is the publisher of Courthouse News. See Declaration of William Girdner in Support of Plaintiff Courthouse News Service's Motion for Preliminary Injunction at 1, filed July 30, 2021 (Doc. 2-2)("Girdner Decl.").

13. Defendant New Mexico Administrative Office of the Courts ("NMAOC") is a branch of the New Mexico court system that "exists to enable the courts of New Mexico to accomplish their mission through":

• Ensuring that the courts have adequate, equitably distributed resources

• Ensuring that the courts have and use current technology

• Providing a fair and equitable statewide human resources system

• Developing and implementing improved court processes and supporting courts in their use

• Collecting and providing information on and for the courts

• Managing and accounting for the collection of revenue

• Ensuring sound financial, budgeting and procurement practices in the management of court resources

• Providing administrative support for the magistrate courts

• Maintaining liaison with the legislative and executive branches of state government

Administrative Office of the Courts, AOC, available at https://www.nmcourts.gov/court-administration/administrative-office-of-the-courts-aoc/. See Complaint ¶ 9 at 4.

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14. Defendant Arthur Pepin is the Director of NMAOC. See Complaint ¶ 9, at 4.

15. Defendant New Mexico First Judicial District Court Clerk's Office ("Clerk's Office") "is the processing center through which virtually all the court and case documents flow." Complaint ¶ 11, at 4 (quoting First Judicial District Court, Court Clerk's Office, available at https://firstdistrictcourt.nmcourts.gov/home/court-clerks-office/).

16. Defendant Kathleen Vigil is the First Judicial District Court Clerk ("Court Clerk"). See Complaint ¶ 11, at 4.

17. The Judicial Information Division ("JID") is a branch of the NMAOC responsible for the electronic filing system ("e-filing"). See Tr. at...