(This article by Bob Audette was published in the Brattleboro Reformer on March 23, 2017)
[B]RATTLEBORO — Courthouse News Service, which bills itself as “a nationwide news service for lawyers and the news media,” has filed a First and 14th Amendment lawsuit against clerks of the court for the state’s 14 county superior courts and their boss, the chief administrator of the courts.
“(T)he state courts of Vermont are the only courts in the nation that prohibit public and press access to documents pertaining to newly filed civil actions until after defendants are served or notified of the suit,” states the suit filed in the U.S. District Court for the District of Vermont by the Gravel and Shea law firm in Burlington. “Courts across the country have recognized that the presumption of access attaches to judicial documents, including civil complaints and docket records, upon receipt of those documents by a court, and that delays in access are the functional equivalent of access denials. Vermont state law flips the constitutionally mandated presumption of access on its head.”
State statutes prohibit court clerks from disclosing any records relating to most new civil actions, including docket information, complaints, and other case initiating documents, until at least one defendant has been served or has received notice of the action and the deadline for serving other defendants has passed or until the action has been finally disposed of.
“The result is that most new Vermont civil suits — including complaints and case-initiating documents as well as docket and other case records — are withheld from public view for weeks or months after they are filed,” notes the court filing.
Named in the lawsuit are Patricia Gabel, the chief administrator; Anne Damone, the clerk of courts in Orange, Windham and Windsor counties; and five other clerks.
“Defendant Anne Damone is sued in her official capacity as the Superior Court Clerk for the following counties: Orange, Windham, and Windsor,” notes the filing. “Acting in her official capacity, Defendant, as well as those acting under her direction and supervision, is directly involved with and responsible for the delays and denials of access to newly-filed complaints that CNS encounters.”
According to the suit, Adam Angione, CNS’s Northwest bureau chief, reviewed the publicly available civil complaints filed in October 2016 in all 14 counties in Vermont. Of the 441 complaints filed that month, only 105, or 24 percent, were made public on the day of filing. The average delay in public access appears to be around 41 days, “and, as of February 2017 — four months later — 92 of the cases filed in October 2016 remained confidential,” notes the suit.
In addition, Angione was provided with different and sometimes conflicting information about when or whether complaints should be made public.
“The First Amendment of the U.S. Constitution provides the press and the public with a presumptive right to access judicial proceedings and documents in civil cases, including newly-filed civil complaints, which are the cornerstone of every case, and docket records, which provide the public and press with the information needed to exercise their First Amendment right of access,” states the filing. “When a complaint is withheld, it ‘leaves the public unaware that a claim has been leveled and that state power has been invoked — and public resources spent — in an effort to resolve the dispute.’”
In three recent cases brought by CNS, federal courts in California, New York, and Texas have issued injunctions precluding court clerks from enforcing policies that withheld new complaints from public and press review for even a short time following the clerks’ receipt of those complaints for filing.
“Because the vast majority of the filed complaints are presumptively deemed confidential and disclosure of those complaints are often delayed for weeks, if not months, CNS does not maintain a reporter in Vermont,” notes the lawsuit. “The delays caused by Vermont’s Confidentiality Rules are so extreme that they offset the incentives for CNS to regularly cover Vermont state court actions. By the time the public has access to the records needed to report on Vermont state court actions, the news is often stale.”
CNS is located in Pasadena, California, and is a news wire service specializing in reporting about civil lawsuits from the date of filing through the appellate level in state and federal courts throughout the United States. CNS publishes a freely available website featuring news reports and commentary, which is read by roughly one million readers each month. The website functions much like a print daily newspaper, featuring staff-written articles from throughout the nation that are posted and rotate on and off the page on a 24-hour news cycle.
