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Judge denies injunction that would have given speedier access to lawsuits filed in Maryland

Madeleine O'Neill//December 27, 2022

Judge denies injunction that would have given speedier access to lawsuits filed in Maryland

By Madeleine O'Neill

//December 27, 2022

A federal judge has declined to issue a preliminary injunction that would have required immediate public access to civil complaints filed in Maryland courts, but will allow the underlying First Amendment challenge from a legal news service to continue.

In a lengthy decision issued last week, U.S. District Judge Ellen L. Hollander wrote that the news service’s lawsuit “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,” Hollander wrote.

The news outlet, Courthouse News Service, sued in March over what it said were delays in receiving civil complaints that should have been accessible to the public immediately upon being filed. Instead, Maryland clerks of court withheld the complaints until they could be reviewed and docketed by clerical staff, according to the complaint.

CNS sued State Court Administrator Pamela Q. Harris and the 22 clerks who oversee filings in each of Maryland’s circuit courts. The lawsuit argued that the press and the public should be able to access civil complaints contemporaneously with when they are filed — or, in the case of complaints filed electronically during weekends or evenings, immediately once the courthouse opens for business.

“Since the adoption of electronic filing via MDEC … access delays have been pervasive. Defendants withhold newly filed complaints while they sit in an electronic review queue until reviewed, docketed, and approved by court clerks,” CNS’s lawyer, Jonathan E. Ginsberg of Bryan Cave Leighton Paisner LLP, wrote in the outlet’s complaint.

As part of its First Amendment lawsuit, CNS also sought a preliminary injunction to block Maryland courts from withholding newly filed civil complaints.

Hollander rejected that request, finding that CNS failed to show it is likely to succeed at trial. The judge concluded that the First Amendment “requires the defendants to provide contemporaneous access to civil complaints, meaning access on the same day that it is submitted, insofar as practicable, and if not practicable, within one court day.”

Hollander also examined datasets provided by CNS and by the judiciary. CNS claimed that from October 2021 through Sept. 30, about 56% of new civil complaints were accessible the same day they were filed, 27% were accessible one day after they were filed, 5% were accessible two days after they were filed and 12% were accessible three or more days after they were filed.

The news outlet measured using calendar days, not business days, though in Maryland court filings can only be accessed at courthouses during business hours.

An analysis by the Administrative Office of the Courts found that 85% of all newly filed civil complaints are publicly available within one business day. The AOC also argued that release times had improved since the implementation of a new “queue” that sets aside civil complaints for an expedited review by clerical staff.

Hollander found that the brief delays caused by reviewing complaints for confidential information, for example, did not establish a First Amendment violation.

But the judge declined to throw out CNS’s lawsuit entirely. Hollander rejected a sovereign immunity defense and a request to abstain from deciding the case in favor of letting the state government handle the dispute as a domestic policy issue.

Ginsberg, the lawyer for CNS, declined to comment Tuesday. The Maryland Attorney General’s Office, which is representing the defendants, declined to comment on pending litigation.

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