Courthouse News Serv. v. Hade
| Decision Date | 14 January 2022 |
| Docket Number | Civil Action No. 3:21cv460–HEH |
| Citation | 580 F.Supp.3d 289 |
| Parties | COURTHOUSE NEWS SERVICE, Plaintiff, v. Karl R. HADE, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
Dabney Jefferson Carr, IV, Troutman Pepper Hamilton Sanders LLP, Richmond, VA, Adam Lee Shaw, Nixon Peabody LLP, Heather Goldman, Pro Hac Vice, Jessica R. Blaemire, Bryan Cave Leighton Paisner LLP, Washington, DC, Jonathan Eric Ginsberg, Pro Hac Vice, Bryan Cave Leighton Paisner LLP, New York, NY, for Plaintiff.
Erin Rose McNeill, Robert B. McEntee, III, Office of the Attorney General, Richmond, VA, for Defendant Karl R. Hade.
John Connell Altmiller, Jr., Pesner Kawamoto Conway PLC, McLean, VA, Heather R. Steele, Pesner Altmiller Melnick & DeMers PLC, Tysons, VA, for Defendant Jacqueline C. Smith.
(Resolving Defendants’ Motions to Dismiss)
THIS MATTER is before the Court on Defendant Karl Hade's ("Defendant Hade") Motions to Dismiss (ECF Nos. 22, 24) and Defendant Jacqueline Smith's ("Defendant Smith")1 Motion to Dismiss (ECF No. 26) all filed on October 12, 2021. Courthouse News Service ("CNS" or "Plaintiff") filed its Amended Complaint on September 14, 2021, alleging that Defendants’ enforcement of two Virginia statutes violates the First Amendment of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment.2 (Am. Compl., ECF No. 21.)
Defendants argue in their Motions to Dismiss that Plaintiff fails to state a claim upon which relief may be granted. Defendant Hade additionally argues that he enjoys sovereign immunity and thus, this Court does not have subject matter jurisdiction over him. (Def. Hade's Mem. Supp. at 4–5, ECF No. 23.) The parties have submitted memoranda in support of their respective positions. On January 10, 2022, the Court heard oral argument on the issues, and the Motions to Dismiss are now ripe for review. For the reasons stated herein, the Court will grant the Motions as to Count Three but deny the Motions in all other respects.
At its foundation, this case involves a web of Virginia statutes that govern public access to civil court records. In Virginia, the clerk of the circuit court for each county "shall have custody of and shall keep all court records ... in their offices or at such location otherwise designated by the clerk." Va. Code § 17.1-242. In all Virginia circuit courts, clerks provide the public with access to these court records at the physical courthouse.3 (Am. Compl. ¶ 3.) Beyond access at the courthouse, some circuit courts provide access to civil court records remotely, via the internet, on a system called "Virginia Officer of the Court Remote Access" ("OCRA"). (Id. ¶ 3.) It is optional for each circuit court clerk to have their records accessible via OCRA, but approximately 90 circuit courts do so. Va. Code § 17.1-293(E)(7) ; (Am. Compl. ¶ 35).
OCRA provides online access to the same civil court records that are accessible at physical courthouses. (Am. Compl. ¶ 52.) However, OCRA is subject to two important statutory limitations. First, OCRA is only accessible to Virginia-licensed attorneys, their staff, and related government officials (the "non-attorney access restriction"). Va. Code § 17.1-293(E)(7).4 Second, OCRA users may not sell, post, or redistribute to a third party any "data" accessed on OCRA unless the "data" is included in a product or service created by the OCRA user and the data is not made available to the general public (the "dissemination restriction"). Id. § 17.1-293(H).5
Even so, circuit court clerks may provide the public with remote online access to civil court records via their own case management system outside of OCRA. (Id. § 17.1-225.) While this option is available, the Amended Complaint does not mention any circuit court that has created such a system.6
CNS is a nationwide news service that reports on civil cases in all 50 states including Virginia (Am. Compl. ¶ 24), and CNS reporters have traditionally traveled to Virginia circuit courts in each county to access the civil court records provided in physical courthouses. (Id. ¶ 31.) In an effort to save money and travel time, CNS asked many circuit court clerks for access to OCRA even though its staff members are not licensed attorneys. (Id. ¶ 64.) Every circuit court clerk denied CNS access to OCRA. (Id. )
Despite the statutory prohibition, the Clerk of the Circuit Court for Prince William County, Defendant Smith, offered to give CNS access to OCRA for a higher price than Virginia attorneys. (Id. ¶¶ 65–74.) At the hearing on January 10, 2022, however, counsel for Defendant Smith made clear that she no longer offers CNS access to OCRA and, in her opinion, the Virginia law bars her from doing so.
As CNS was seeking access to OCRA through individual circuit court clerks, it also sought access through the Office of the Executive of the Supreme Court of Virginia ("OES"). Defendant Hade is the Executive Secretary of OES. While circuit court clerks upload court records to the system and control those records, OES "operates and maintains" the servers and websites that OCRA exists on. Va. Code § 17.1-502(A) ; (Am. Compl. ¶ 16).
When CNS asked OES for access to OCRA, OES stated that it was not legally authorized to provide access because OCRA is limited to "members in good standing with the Virginia State Bar" and all court documents, though viewable on OCRA, are "under the custody and control of the circuit court clerks." (Am. Compl. ¶ 72.) Moreover, OCRA's website, which OES controls, states that OCRA "is intended solely for the use of authorized Officer of the Court personnel ... and [a]ll other use is expressly prohibited." (Id. 53.) Lastly, Robert Smith, then-Director of the Department of Judicial Information and Technology for OES and an employee of Defendant Hade, stated that it has "always been [OES’] stance that the [Va. Code] does not support providing [OCRA] to anyone other than members of the bar." (Id. ¶ 59.)
CNS now brings three claims via 42 U.S.C § 1983 against Defendants. First, CNS alleges that Defendants’ enforcement of OCRA's non-attorney access restriction, Va. Code § 17.1-293(E)(7), violates the First Amendment (Count One). (Id. ¶¶ 86–93.) Second, CNS alleges that Defendants’ enforcement of OCRA's dissemination restriction, Va. Code § 17.1-293(H), violates the First Amendment (Count Two). (Id. ¶¶ 86–101.) Third, CNS alleges that Defendants discriminated against it by enforcing OCRA's non-attorney access restriction in violation of the Equal Protection Clause of the Fourteenth Amendment (Count Three). (Id. ¶¶ 102-107.)
First, Defendant Hade submitted a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1). (ECF No. 22.) A motion made pursuant to Rule 12(b)(1) challenges the Court's jurisdiction over the subject matter of a complaint. Such a challenge can be facial, asserting that the facts as pled fail to establish jurisdiction, or factual, disputing the pleadings themselves and arguing that other facts demonstrate that no jurisdiction exists. Beck v. McDonald , 848 F.3d 262, 270 (4th Cir. 2017) (quoting Kerns v. United States , 585 F.3d 187, 192 (4th Cir. 2009) ). For a facial challenge, "the plaintiff is ‘afforded the same procedural protection as she would receive under a Rule 12(b)(6) consideration.’ " Id. Defendant Hade is making a facial challenge. (Def. Hade's Reply at 2, ECF No. 37.) Thus, the familiar Rule 12(b)(6) standard of review applies to his Motion to Dismiss even though it was motioned for under Rule 12(b)(1). See Beck , 848 F.3d at 270.
A Rule 12(b)(6) motion "does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses." Tobey v. Jones , 706 F.3d 379, 387 (4th Cir. 2013) (quoting Republican Party of N.C. v. Martin , 980 F.2d 943, 952 (4th Cir. 1992) ). "A complaint need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ " Ray v. Roane , 948 F.3d 222, 226 (4th Cir. 2020) (alteration in original) (quoting Tobey , 706 F.3d at 387 ). However, a "complaint must provide ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ " Turner v. Thomas , 930 F.3d 640, 644 (4th Cir. 2019) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "Allegations have facial plausibility ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Tobey , 706 F.3d at 386 (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). A court, however, "need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments." Turner , 930 F.3d at 644 (quoting Wag More Dogs, LLC v. Cozart , 680 F.3d 359, 365 (4th Cir. 2012) ). In considering such a motion, a plaintiff's well-pleaded allegations are taken as true, and the complaint is viewed in the light most favorable to the plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 253 (4th Cir. 2009). Legal conclusions enjoy no such deference. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
First, Defendant Hade asks the Court to dismiss Plaintiff's Amended Complaint under Rule 12(b)(1) because he enjoys sovereign immunity under the Eleventh Amendment. The Eleventh Amendment "render[s] States immune from being hauled into federal court by private parties." Wright v. North Carolina , 787 F.3d 256, 261 (4th Cir. 2015). State officers being sued in their official capacity receive sovereign immunity to the same extent as the state itself. Will v. Michigan Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Ex Parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), however, creates an expansive exception to sovereign immunity where state...
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