Courthouse News Serv. v. Harris

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
PartiesCOURTHOUSE NEWS SERVICE, Plaintiff, v. PAMELA Q. HARRIS, in her official capacity as the State Court Administrator of the Administrative Office of the Courts of Maryland, et al., Defendants.
Docket NumberCivil Action ELH-22-0548
Decision Date22 December 2022


PAMELA Q. HARRIS, in her official capacity as the State Court Administrator of the Administrative Office of the Courts of Maryland, et al., Defendants.

Civil Action No. ELH-22-0548

United States District Court, D. Maryland

December 22, 2022


Ellen L. Hollander, United States District Judge

This case involves the intersection of the digital age and the First Amendment. Because many courts now permit electronic submission of lawsuits, twenty-four hours a day, 365 days a year, the question arises as to what the First Amendment requires in terms of public access to those lawsuits.

Plaintiff Courthouse News Service (“CNS”) has filed suit against Pamela Q. Harris, the State Court Administrator of Maryland's Administrative Office of the Courts, and the Clerk of almost every circuit court in the State of Maryland,[1] in their official capacities (the “Clerks”), complaining that defendants fail to provide the public and the press with contemporaneous access to non-confidential civil lawsuits that are electronically submitted. See ECF 1 (Complaint); ECF 11 (First Amended Complaint). According to CNS, the right of public access attaches when a suit is electronically submitted to a Clerk's office. ECF 9-1 at 24. And, they claim that defendants unlawfully engage in a policy and practice of delaying access to such complaints until after


completion of clerical review and docketing. ECF 11 at 30-31. The First Amended Complaint, lodged pursuant to 42 U.S.C. § 1983, and founded on both the First and Fourteenth Amendments to the Constitution, seeks injunctive and declaratory relief, Id. ¶ 41, as well as reasonable attorneys' fees and costs. Id. at 31, ¶ (e).

Plaintiff has also moved for a preliminary injunction (ECF 9), supported by a memorandum of law (ECF 9-1) (collectively, the “PI Motion”) and several exhibits. CNS seeks to enjoin defendants from “withholding newly e-filed non-confidential civil complaints from press and public view until after clerical review and docketing” and to obtain “contemporaneous access to all such complaints upon their receipt for filing.” ECF 9-1 at 32.

Defendants filed a combined motion to dismiss the Amended Complaint and opposition to the PI Motion (ECF 23), supported by a memorandum of law (ECF 23-1) (collectively, the “Motion”) and several exhibits. They maintain that electronically filed civil complaints are accessible to the press and the public within a “reasonably contemporaneous” time of submission. They seek dismissal of the suit under the Eleventh Amendment and, alternatively, they urge the Court to abstain. Moreover, defendants ask the Court to dismiss the suit as to the twenty-two defendant Clerks, claiming that they are merely ministerial officers. ECF 23-1 at 41. In addition, defendants assert that the case is moot due to the implementation of a new queue that expedites public access and resolves any allegedly unconstitutional delays. ECF 50 at 18.

CNS filed a combined opposition to the Motion and reply to defendant's opposition to the PI Motion. ECF 47. It is supported by several exhibits. The defendants filed a reply as to their Motion (ECF 50), supported by several exhibits, including three amicus curiae briefs filed by the Conference of [State] Chief Justices in regard to cases in the Second Circuit, the First Circuit, and the District of Oregon, urging abstention based on principles of comity and federalism. See ECF


50-6; ECF 50-7; ECF 50-8. With permission of the Court (ECF 54), plaintiff filed a surreply (ECF 55), with exhibits.

In addition, CNS moved for expedited, limited discovery. ECF 27. By Memorandum (ECF 41) and Order (ECF 42) of August 18, 2022, the Court granted that motion.

The pending motions were heard on November 28, 2022. The transcript for the hearing is docketed at ECF 59. At the hearing, the parties relied on the exhibits they provided with their submissions. In addition, defendants submitted a letter from United States Senator Ron Wyden (D. Oregon) to Chief Justice John Roberts, Jr., dated August 4, 2017, expressing concerns about privacy violations in public filings in federal court.[2]

After the hearing, plaintiff filed correspondence (ECF 61) to bring a recent decision to the Court's attention with respect to the issue of abstention: Courthouse News Service v. O'Shaughnessy, 22-cv-201471-SDM-CMV, 2022 WL 17476835, at *1 (S.D. Ohio Dec. 6, 2022). In response, defendants filed correspondence (ECF 62) to clarify their position regarding abstention.

Thereafter, on December 19, 2022, the Court held a telephone hearing with counsel.[3] At that hearing, the parties confirmed that in Maryland the judiciary does not permit the public or the press to obtain remote access to any complaints. See also ECF 59 at 95. Instead, the public and the press may only access complaints during business hours at a courthouse. Usually, they are


reviewed at computer terminals. And, CNS has acknowledged that it is not seeking remote access. ECF 59 at 18.

For the reasons that follow, I shall deny both the Motion and the PI Motion.

I. Factual Background[4]

CNS is a news service that reports on civil litigation in state and federal courthouses across the country. ECF 11, ¶ 16.[5] Its publications include its “New Litigation Reports,” which contain summaries of new civil complaints that are regarded as significant. Id. ¶ 44. To compile the summaries, CNS reporters have traditionally visited their assigned courthouses to review complaints and “to determine which ones are newsworthy.” Id. ¶ 49.

However, the federal courts, and an increasing number of state courts, now make at least some court records available electronically. Id. ¶ 48. Therefore, “CNS also covers courts remotely


through the Internet.” Id. According to CNS, new, non-confidential civil complaints in those courts generally “flow automatically onto public access terminals and remotely online upon receipt, where they can be viewed by the public and press on the day of filing, prior to clerk review, docketing, and acceptance.” ECF 11, ¶ 72.[6]

The defendants are employees of the Maryland judiciary.[7] The judicial power of the State of Maryland is vested in the Supreme Court of Maryland, which is Maryland's highest court; the Appellate Court of Maryland, the State's intermediate appellate court; and the circuit courts, orphans' courts, and district courts. MD. CONST. ART. IV, § 1. I pause to note that, until December 14, 2022, Maryland's high court was known as the Court of Appeals and the intermediate appellate court was called the Court of Special Appeals.[8] However, the change is “in name only,” and “[t]he precedents, Rules, and all other practices of the Court are unaffected by the change and will continue in force as the precedents, Rules, and practices of the Supreme Court of Maryland.” Welcome to the Supreme Court of Maryland, MARYLAND   COURTS, (last accessed Dec. 21, 2022). For convenience, and because the name change just went into effect, I shall generally use the names by which the courts were known since their inception, and when this case began.

Each county in Maryland, as well as Baltimore City, has a circuit court. MD. CONST. ART. IV, § 20. The circuit courts are “the highest common-law and equity courts of record [in


Maryland] exercising original jurisdiction within the State.” Md. Code, § 1-501 of the Cts. & Jud. Proc. Art. (“C.J.”). Each circuit court “has full common-law and equity powers and jurisdiction in all civil and criminal cases within its county.” C.J. § 1-501.

Trials are conducted in the State's district courts and circuit courts. But, the circuit courts are the only courts in Maryland that conduct jury trials. Id. § 6-404.

The Maryland Court of Appeals (now the Supreme Court of Maryland) oversees Maryland's state judicial system, and establishes the rules that govern the practice and procedure in Maryland courts. MD. CONST. ART. IV, § 18. A standing committee (the “Rules Committee”) of lawyers and judges, appointed by the Maryland Court of Appeals, assists that court in the exercise of its rulemaking power. C.J. § 13-301. The Rules Committee meets regularly to consider proposed amendments and additions to the Maryland Rules that govern practice and procedure (the “Rules” or “Maryland Rules”).[9]

Harris is the State Court Administrator for Maryland's Administrative Office of the Courts (“AOC”). ECF 23-32 (Harris Decl.), ¶ 2. “Subject to supervision by the Chief Judge of the Court of Appeals, the State Court Administrator shall be responsible for the administration” of the Maryland Electronic Courts system. Md. Rule 20-103(a). “MDEC” is the acronym for “Maryland Electronic Courts.” Md. Rule 20-101(k) (Committee Note).

Maryland Rule 20-101(k) defines “MDEC” or “MDEC system” as the system of electronic filing and case management established by the Maryland Court of Appeals. MDEC enables Maryland courts at all levels to “collect, store, process, and access records electronically.” ECF 9-10 (“MDEC Policies & Procedures”) at 3. Harris's many duties include the “adopt[ion of]


policies and procedures that are necessary or useful for the proper and efficient implementation” of MDEC, consistent with the applicable Rules. Md. Rule 20-103(b)(1).

According to the defendants, “Maryland's transition to MDEC involved many years of planning,” beginning in 2006. ECF 23-1 at 17. At that time, Robert M. Bell, who was then the Chief Judge of the Maryland Court of Appeals, appointed an advisory committee that conducted years of studies and eventually recommended an electronic filing system. Id. The Maryland Judiciary contracted with Tyler Technologies, Inc. (“Tyler”) on October 28, 2011, to create an electronic filing system for case management. Id. The Maryland judiciary began the transition to the MDEC...

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