United States Court of Appeals For the First Circuit
No. 21-1624
COURTHOUSE NEWS SERVICE; MTM ACQUISITION, INC., d/b/a Portland Press Herald, d/b/a Maine Sunday Telegram, d/b/a Kennebec Journal, d/b/a Morning Sentinel; SJ ACQUISITION, INC., d/b/a Sun Journal,
Plaintiffs, Appellants,
BANGOR PUBLISHING CO., INC., d/b/a Bangor Daily News,
Plaintiff,
v.
AMY QUINLAN,* in her official capacity as State Court Administrator for the State of Maine Judicial Branch; PETER SCHLECK, in his official capacity as Clerk of the Penobscot County Superior Court,
Defendants, Appellees.
No. 21-1642
Plaintiff, Appellant,
COURTHOUSE NEWS SERVICE; MTM ACQUISITION, INC., d/b/a Portland Press Herald, d/b/a Maine Sunday Telegram, d/b/a Kennebec Journal, d/b/a Morning Sentinel; SJ ACQUISITION, INC., d/b/a Sun Journal,
Plaintiffs,
* Pursuant to Fed. R. App. P. 43(c)(2), Amy Quinlan has been substituted for James T. Glessner as defendant-appellee in both appeals. v.
AMY QUINLAN, in her official capacity as State Court Administrator for the State of Maine Judicial Branch; PETER SCHLECK, in his official capacity as Clerk of the Penobscot County Superior Court,
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Barron, Chief Judge, Lynch and Thompson, Circuit Judges.
Barbara A. Smith, with whom Roger Myers, Rachel Matteo-Boehm, Bryan Cave Leighton Paisner LLP, Jeffrey J. Pyle, Prince Lobel Tye LLP, Sigmund D. Schutz, and Preti, Flaherty, Beliveau & Pachios, LLP were on brief, for appellants Courthouse News Service, MTM Acquisition, Inc., and SJ Acquisition, Inc. Bernard J. Kubetz, with whom Eaton Peabody was on brief, for appellant Bangor Publishing Co., Inc. Bruce D. Brown, Katie Townsend, and Shannon A. Jankowski on brief for amici curiae Reporters' Committee for Freedom of the Press and twenty-eight media organizations in support of appellants. Thomas A. Knowlton, Deputy Attorney General, with whom Aaron M. Frey, Attorney General, and Jason Anton, Assistant Attorney General, were on brief, for appellees. Joshua D. Dunlap, Peter J. Guffin, Laura M. O'Hanlon, and Pierce Atwood LLP on brief for amicus curiae Conference of Chief Justices in support of appellees.
April 25, 2022 LYNCH, Circuit Judge. When the Maine Supreme Judicial
Court (SJC) piloted an electronic case filing system for the
state's trial courts, its original rules required court clerks to
withhold public access to new civil complaints until three business
days after at least one defendant had been served, resulting in
delayed access, possibly for months. On February 3, 2021, a group
of Maine newspapers and a national legal media company sued a pair
of state court officials, alleging that such delayed access
violated the First Amendment. The SJC then changed its rules to
eliminate the specific timeframe for providing access. Instead
of delineating a new deadline, it now allows the public to access
newly filed civil complaints after court clerks process them. The
rules do not specify how quickly that processing must occur.
The plaintiffs filed first amended complaints alleging
that, despite that change, the rules still imposed significant
delays on accessing newly filed civil complaints. They sought a
preliminary injunction. The defendants sought dismissal of the
amended complaints, asserting that the plaintiffs had failed to
state a plausible First Amendment claim. In their response to the
motion for a preliminary injunction, the defendants disputed the
plaintiffs' assertion of undue delays.
The district court held that the plaintiffs had failed
to state a claim, dismissed the complaint, and denied the motion
for a preliminary injunction as moot. Courthouse News Serv. v.
-3- Glessner, 549 F. Supp. 3d 169, 194 (D. Me. 2021). We vacate the
dismissal and remand.
I.
A. Factual Background1
Prior to the SJC's adoption of electronic filing rules
in August 2020, parties commenced civil cases in Maine state court
by filing paper complaints with the appropriate clerk's office.2
On August 21, 2020, the SJC adopted the Rules of Electronic Court
Systems (RECS). The RECS provide for electronic filing of and
access to court records. The state is piloting electronic filing
in a handful of trial courts. The plaintiffs challenge the RECS
on their face and as applied in one of those early adopters, the
Penobscot County Superior Court.
Initially, the RECS prohibited public access to
electronically filed records "until three business days after
acceptance by the court clerk of the filing of such record and
proof of service of process on at least one defendant." RECS
(4)(A)(1) (effective Aug. 21, 2020). We refer to these initially
adopted rules as the Former RECS. As plaintiffs in Maine have
1 We take the facts alleged in the first amended complaint as true and draw all reasonable inferences in favor of the plaintiffs. See Loc. No. 8 IBEW Ret. Plan & Tr. v. Vertex Pharms., Inc., 838 F.3d 76, 78 n.1 (1st Cir. 2016). 2 Records for cases assigned after filing to the business and consumer docket were maintained electronically. See Me. R. Civ. P. 139, 140 (repealed 2020).
-4- ninety days to serve defendants, Me. R. Civ. P. 3, the initial
version of the RECS potentially delayed public access to newly
filed complaints for more than three months.
After the plaintiffs here sued, the SJC amended the
Former RECS in February 2021 to eliminate the three-business-days-
after-service provision and did not substitute an express
deadline. We refer to these amended rules as the Operative RECS.
The Operative RECS provide that "[u]nless prohibited by law or by
court order, a court record in a civil case is accessible by the
public upon entry into the electronic case file."3 RECS 4(A)(1)
(effective Mar. 15, 2021). A record is considered entered into
the electronic case file "after a court clerk has determined that
the submission complies with" rules governing the submission of
documents in Maine courts. RECS 2(A)(1) (citing Me. R. Civ. P.
5(f) and RECS 34). Just as with paper records, the clerk must
confirm that the record is signed and accompanied by all "legally
required element[s], including but not limited to, a filing fee,
appeal fee, registry recording fee and envelope or summary sheet,
[and], if filed by an attorney, . . . the attorney's Maine Bar
3 The Former and Operative RECS exclude from disclosure records, including complaints, related to certain sensitive proceedings (e.g., mental health civil commitment proceedings, minor settlement proceedings) and certain private information within court records (e.g., names of minors, personal financial records, personal medical records). See RECS 4(B), (E). Those types of confidential complaints are not at issue.
-5- Registration Number." Me. R. Civ. P. 5(f). Additionally, the
clerk must confirm that the document has been properly formatted
and uploaded. RECS 34. Only at that point, under the Operative
RECS, is the record available to the public electronically.4 RECS
4(A)(1).
Several Maine newspapers -- the Portland Press Herald,
Maine Sunday Telegram, Kennebec Journal, Morning Sentinel, Sun
Journal, and Bangor Daily News -- and Courthouse News Service, a
national legal media company, are the plaintiffs in this action.
They seek public access only to newly filed, non-confidential civil
complaints filed in the Penobscot County Superior Court, on which
they regularly report. They allege that before that court's
implementation of electronic filing, they "could review and report
on newly filed civil complaints by reviewing them in paper form
and copying them at the courthouse. Since the adoption of
electronic filing [under the Former RECS], however, [their] review
of new complaints has been substantially delayed."
The plaintiffs allege that under the Former RECS, they
experienced long delays in obtaining newly filed complaints.
Courthouse News alleged that it sent a reporter to the Penobscot
courthouse "nearly every business day" between February 3 and 25,
4 The SJC has also temporarily allowed public access in paper format to any documents entered into the electronic system. SJC Temp. Standing Order (Mar. 1, 2021).
-6- 2021, that the reporter sought access to any new complaints filed
since her last visit, and that over those four weeks, the clerk
"regularly inform[ed] her that there [were] no additional
complaints for her to see, due to the continued applicability of
the [Former RECS]." The plaintiffs say that between January 1 and
February 24, 2021, twenty civil complaints were filed
electronically in Penobscot County Superior Court, but the clerk
permitted the Courthouse News reporter "to review only eight of
them -- and all of those after a delay of several days to two
weeks."
After the SJC amended the Former RECS but before the
Operative RECS went into effect, the plaintiffs amended their
complaint. They pointed to an automated email from the Penobscot
County Superior Court to electronic filers, which stated that the
processing period for newly filed civil complaints would take "up
to 24 business hours." Based on that email, the plaintiffs alleged
that once the Operative RECS took effect, they would experience
delays of up to three business days to receive new complaints.
They also claim that "a record filed at noon on a Friday could
remain unavailable until noon the following Wednesday" and that a
holiday weekend would delay access until the following Thursday.
B. Procedural History
The plaintiffs sued the defendants, the administrator of
Maine's judicial branch and the clerk of the Penobscot County
-7- Superior Court, in the U.S. District Court for the District of
Maine. They raised both facial and as-applied First Amendment
challenges to the Former RECS.5 After the SJC amended the Former
RECS, but before the Operative RECS came into effect, the
plaintiffs amended their complaints. The defendants then moved
to dismiss the first amended complaints, contending that the
plaintiffs' claims were unripe and that the First Amendment permits
the sort of "negligible delay" imposed by the Rules. Once the
Operative RECS took effect, the plaintiffs moved to preliminarily
enjoin them, and the defendants opposed the motion, supporting
their opposition with a declaration. The defendants expressly
disavowed reliance, at this stage of the case, on any abstention
doctrine.
The district court dismissed the first amended
complaints for failure to state a claim. Glessner, 549 F. Supp.
3d at 194. It held that the claims were ripe because they were
fit for review and because the Operative RECS "create[] a direct
and immediate dilemma for the parties and hardship to the
Plaintiffs looms." Id. at 179. Turning to the merits, the
district court held the First Amendment protects a qualified right
5 The initial plaintiffs were Courthouse News and all but one of the newspapers. The district court allowed the final plaintiff, Bangor Publishing Co., to intervene on March 8, 2021. As there are no material differences in the arguments the plaintiffs raise, we discuss them collectively.
-8- of the public to access newly filed civil complaints. Id. at 189.
It then determined that the Operative RECS imposed reasonable time,
place, and manner restrictions on the plaintiffs' access to
judicial records and so rejected the plaintiffs' facial and as-
applied challenges. Id. at 191-94. It also denied the motion for
preliminary injunction as moot. Id. at 194.
The plaintiffs timely appealed from the judgment,
focusing their appellate briefs on their claim that the district
court erred in allowing the motion to dismiss.
II.
We consider the merits of the plaintiffs' claims, 6
reviewing de novo the district court's dismissal of their first
amended complaints. Disaster Sols., LLC v. City of Santa Isabel,
21 F.4th 1, 5 (1st Cir. 2021).
Neither this court nor the Supreme Court has recognized
any right under the First Amendment to access documents filed in
6 The defendants contend that the plaintiffs' challenge to the Former RECS is moot. But the plaintiffs seek only to enjoin the Operative RECS. And the defendants admit, as they must, that such a challenge is not moot. Cf. ACLU of Mass. v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 52-53 (1st Cir. 2013). The defendants also argued to the district court that the plaintiffs' challenge to the Operative RECS was not yet ripe. They do not make that argument again on appeal, and we adopt the district court's holding that the plaintiffs' claims are ripe, see Glessner, 549 F. Supp. 3d at 177-79; cf. Reddy v. Foster, 845 F.3d 493, 500–01 (1st Cir. 2017). As the plaintiffs' claims are neither moot nor unripe, we proceed to the merits.
-9- civil cases.7 The parties agree that there is a qualified First
Amendment right in the public to access newly filed complaints.
See Press-Enterprise Co. v. Superior Ct. ("Press-Enterprise II"),
478 U.S. 1, 10–11 (1986). But see El Dia, Inc. v. Hernandez Colon,
963 F.2d 488, 495 (1st Cir. 1992) (expressing doubt as to extension
of qualified public right of access to civil proceedings).8 Where
they differ is on when, and to what, the right attaches. The
defendants claim the right does not attach until a rules-compliant
complaint is processed, but the plaintiffs claim that the right
attaches at the time a complaint (even if it is ultimately non-
conforming) is filed. We need not decide that quarrel here because
the defendants concede that some level of First Amendment scrutiny
applies to evaluate whether the time from submission of the
7 There is a qualified public right to access certain proceedings and documents in criminal cases. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576-77 (1980); In re Boston Herald, Inc., 321 F.3d 174, 183 (1st Cir. 2003). 8 We note that each of our sister circuits that has considered whether the right extends to at least some documents and proceedings in civil cases concluded that it does. See, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 298 (2d Cir. 2011); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984); Rushford v. New Yorker Mag., Inc., 846 F.2d 249, 253 (4th Cir. 1988); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir. 1983); In re Cont'l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983); Courthouse News Serv. v. Planet ("Planet I"), 750 F.3d 776, 786 (9th Cir. 2014); see also Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983) (extending right to civil habeas proceedings and reserving decision about whether right applies to other civil proceedings).
-10- complaint to when public access is available is contemporaneous
enough. The question raised by the plaintiffs' first amended
complaints thus remains whether the time between submission and
provision of public access here passes First Amendment scrutiny.
We determine only whether the plaintiffs have plausibly
alleged that the Operative RECS violate their right to access such
complaints. See Air Sunshine, Inc. v. Carl, 663 F.3d 27, 33 (1st
Cir. 2011) (holding that to survive a motion to dismiss "[t]he
complaint 'must contain sufficient factual matter, accepted as
true, "to state a claim to relief that is plausible on its face"'"
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))).
The parties offer two different constitutional standards
to determine whether the Operative RECS violate the First Amendment
as applied to the plaintiffs' requests for access to newly filed
civil complaints. The plaintiffs assert that we should apply the
standard for "clos[ing]" public access to proceedings in violation
of the First Amendment's qualified public right of access: strict
scrutiny. Press-Enterprise II, 478 U.S. at 13-14; see Globe
Newspaper Co. v. Superior Ct., 464 U.S. 596, 510 n.17 (1982).
Under strict scrutiny, the Operative RECS would be
unconstitutional unless they are "essential to preserve higher
values and [are] narrowly tailored to serve that interest." See
id. at 13-14 (quoting Press-Enterprise Corp. v. Superior Court
("Press-Enterprise I"), 464 U.S. 501, 510 (1984)). The defendants
-11- maintain that, as the district court did, we should evaluate the
restrictions under the time, place, and manner framework. Under
that standard, if the Operative RECS impose a content-neutral time,
place, or manner restriction, they would be unconstitutional
unless they are narrowly tailored to serve a significant
governmental interest and leave open adequate alternative channels
for communication. See Cutting v. City of Portland, 802 F.3d 79,
84 (1st Cir. 2015); Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989). Under either standard, the state bears the burden of
showing that the regulation is constitutionally permissible. See
Cutting, 802 F.3d at 84; Press-Enterprise I, 464 U.S. at 510.
We need not determine which standard applies because the
plaintiffs have plausibly alleged a First Amendment violation
under even the less demanding test. The defendants justify the
Operative RECS as serving the state's interest in the "fair and
orderly administration of justice," specifically in "ensuring
compliance with court rules, minimizing the risk of harm to those
involved in court proceedings, and protecting privacy in court
records." We accept that states may have a strong interest in
enforcing at least some of their rules, in protecting parties, and
in safeguarding privacy interests implicated by sensitive judicial
records. See In re Providence J. Co., Inc., 293 F.3d 1, 13 (1st
Cir. 2002); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 505–06
(1st Cir. 1989). Yet to survive even intermediate scrutiny, the
-12- defendants must show that whatever administrative delay the
Operative RECS create reasonably serves those interests and is
narrowly tailored to do so. In the first amended complaint, the
plaintiffs allege that they will experience delays in accessing
new complaints of up to six calendar days. The defendants must
justify those delays by showing that each of the five steps they
take to process the complaints -- checking for (1) a signature,
(2) appropriate fees, (3) an envelope or summary sheet, (4) a bar
number (for attorney filings), (5) proper formatting and uploading
-- serve an important governmental interest. We cannot say based
on the first amended complaint that the defendants have met that
burden. Nor can we say that they have failed to meet it. "[T]his
inquiry requires specific findings[.]" In re Providence J., 293
F.3d at 13. But at minimum, taking the allegations in the first
amended complaint as true, the plaintiffs have stated a claim for
violating the qualified public right of access. Dismissing the
first amended complaint was therefore error.
The defendants argue that the plaintiffs failed to
allege that the Operative RECS would result in "more than an
inconsequential delay" in accessing records. They also assert
that the plaintiffs have no basis to make such an allegation.
Neither argument bears scrutiny. The plaintiffs expressly allege,
based on documents created by the Penobscot County Superior Court,
that the court anticipates processing delays of up to "24 business
-13- hours." The consequences of such a delay remain to be seen. But
it is at least plausible that a delay of up to six calendar days
would be consequential in the plaintiffs' exercise of their right
to access judicial records. The defendants also try to rebut the
plaintiffs' assertions about the length of delays by pointing to
their own declaration in opposition to the preliminary injunction
motion. Those declaration might help the defendants later in the
proceedings, but we cannot consider them at the motion-to-dismiss
stage, nor can we rely on them to decide a factual dispute in favor
of the defendants. See Doe v. Pawtucket Sch. Dep't, 969 F.3d 1,
8–9 (1st Cir. 2020).
III.
We offer three notes to aid the district court on remand.
First, to be clear, reinstating the first amended
complaint and allowing the case to proceed permits each side to
obtain and present evidence. Given the protean nature of the
claims of constitutional violation asserted by the plaintiffs at
oral argument, additional specification of the claims may well
prove prudent. We decide only that, on the facts alleged, the
plaintiffs' claim does not fail as a matter of law.
Second, while the defendants chose not to argue for
abstention in seeking dismissal, we note that one of our sister
circuits found abstention to be appropriate at a later stage in
parallel litigation. See Courthouse News Serv. v. Brown, 908 F.3d
-14- 1063, 1070-75 (7th Cir. 2018). The defendants' decision not to
argue for abstention at the motion-to-dismiss stage does not
prevent them from raising abstention concerns later in these
proceedings. See Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d
508, 517–18 (1st Cir. 2009).
Third, we caution that the plaintiffs may obtain relief
only if they establish that the court officials violate the First
Amendment, not merely state law, in delaying their access to
complaints. See Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 106 (1984); Doe v. Shibinette, 16 F.4th 894, 903–04 (1st
Cir. 2021). If any timelines for providing complaints established
under state law are constitutionally sufficient, then state
officials' failure to adhere to them is a matter for the state
courts.
IV.
We reverse the judgment of the district court and remand
for further proceedings consistent with this decision.
-15-