A federal judge has ordered Jacqueline Smith, as clerk for Circuit Court in Prince William, and George Schaefer, as clerk of the Circuit Court for Norfolk, to pay $2 million in attorney fees after ruling against them in a First Amendment case related to timely access to court records.
The two clerks were sued by Courthouse News Service, a national news service based in California that reports on legal matters, including civil lawsuits. The news service’s lawsuit claimed that its reporters were denied access to review lawsuits the same day as they were filed with the clerks’ offices.
After a four-day bench trial that started Jan. 31, Henry Coke Morgan, senior judge for the U.S District Court for the Eastern District of Virginia, ruled in favor of Courthouse News Service. Morgan agreed the news service was deprived of regular same-day access to newly filed civil complaints from January 2018 through June 2018, according to his Feb. 21 ruling.
Morgan ruled that the U.S. Constitution's First Amendment guarantees a right to same-day access to new civil complaints.
“The First Amendment requires that such documents be made available contemporaneously with their filing. Contemporaneously means the same day unless that’s not practicable,” the judge said.
The news service argued that the clerks in Prince William and Norfolk had delayed providing the new cases until they completed a series of clerical tasks that included setting up a docket and scanning the filings. Reporters were then directed to computer screens to view new cases a day or two after they were filed.
Despite a series of federal rulings saying the practice of delaying access violates the First Amendment, a large number of Virginia court clerks continue to withhold same-day access, the news service contended.
The First Amendment protects freedom of speech and of the press, freedom of religion, the right to peaceably assemble and to petition the government for a redress of grievances.
Because both clerks have been making an effort to provide same-day access to civil complaints since the end of 2018, Morgan did not grant the news service’s request for injunctive relief.
“I’m very reluctant to grant injunctive relief, because that suggests -- to me injunctive relief suggests you’re giving – you’re enjoining somebody when they're really doing something intentionally wrong or have a, I suppose a blasé attitude about it, which I am not persuaded is the case here,” he said, according to court documents.
Smith told InsideNoVa that the Prince William clerk’s office is now providing timely access to lawsuits. She was elected in April 2017 in a special election after then-Clerk Michele McQuigg died.
“It took some time after my election to get everything on the right track, but we are in great shape now thanks in no small part to the phenomenal work of my staff,” Smith said in an email.
Smith said her staff has to redact personal information such as Social Security numbers, victim information and identification of children before making documents available to the media and the public.
According to the judge’s ruling, a witness for the Courthouse News Service testified, that between January 2018 and June 2018 the Prince William Circuit Court made 38% of new civil complaints available on the day of filing; 22% available the next court day after filing; 16% available two court days after filing, and 23% available three or more court days after filing. By September 2018, the clerk’s office was making about 78% of new civil complaints available on the day of filing, the witness said.
Smith noted that the clerks have appealed the ruling, as well as the award of attorneys fees, and that any costs ultimately assessed will be paid by insurance.
“Defense counsel was and continues to be paid by insurance at no cost to the taxpayers, localities or the court,” Smith added.
Morgan ordered the two clerks to file a joint status report on availability of new lawsuits by Aug. 15, at which point the news service may renew its motion for a permanent injunction.