State Court Clerks In New Mexico Delay Access To Court Records In Violation Of The First Amendment, But An Adequate Remedy Proves Elusive

• Published date: 03 November 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Jackson Walker LLP
• Author: Mr John Edwards

On October 8, 2021, after a preliminary injunction hearing held on September 28, 2021, Judge James O. Browning of the U.S. District Court for the District of New Mexico issued a 92-page opinion in which he found that the New Mexico Administrative Office of the Courts and the First Judicial District Clerk's Office violated the First Amendment right of timely public and press access to newly filed state civil, non-confidential complaints. While a favorable ruling in many respects, the resulting preliminary injunction does not, for now, fully remedy the constitutional violation.

The lawsuit was brought by Courthouse News Service (CNS), led by its founder and publisher, William Girdner, asserting that First Amendment and common law precedent - viewed through the lens of traditional access - established a right to contemporaneous access to new civil complaints when filed, before administrative processing, largely derived from the influential case of Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (known as Press-Enterprise II). The heart of the argument was that the district clerks, who are the custodian of court records, were unconstitutionally delaying access to new complaints in a way that departed from the traditional access that existed in the world of paper filings before the advent of electronic filing (or e-filing). Recent statistics showed that over 30% of newly filed complaints were delayed one or more days statewide, and over 67% in the Santa Fe court, before the press and public could see them.

Intuitively, one would think that under mandatory e-filing, access delays would decrease, not increase. Indeed, federal courts using PACER and many other state courts throughout the country using a variety of e-filing systems provide traditional, on-receipt access within minutes of an e-filing transaction. Yet, New Mexico and many other states now delay access until after administrative processing-also called docketing-which can vary in time, but often results in access being delayed until the next day or longer. This is not traditional access where, the undisputed evidence showed, new complaints were made available to CNS and other members of the press within minutes of receipt of paper filings by clerks at in-take counters, and virtually all on the same day of filing. Instead of speeding up access, certain courts and clerks have chosen to slow down access to e-filed complaints through administrative processing "requirements," which detrimentally...