10th Circuit rules in favor of public's right to timely access to state court filings

Nov. 28—A recent ruling by the 10th Circuit Court of Appeals affirms New Mexico residents have the right to immediately access civil filings in state courts but leaves it to the U.S. District Court in Albuquerque to determine how that looks in practice — and exactly how soon lawsuits must become available for public review.

"What it does is bring the press and the public in New Mexico one step closer to being able to know what civil complaints are filed in New Mexico in a timely fashion, while it's still relevant," attorney Katherine Keating said in an interview Monday about the ruling.

Keating is one of several lawyers representing California-based Courthouse News in a lawsuit accusing New Mexico court officials of violating the First Amendment by delaying access to electronically filed civil cases to allow time for clerks to process them.

The appellate court ruling is the latest action in the 2021 complaint, which says the state's shift from paper to digital records in 2012 led to delays in public access.

"Some court officials, including in New Mexico, have taken the position that the public isn't entitled to see any new court filing until clerks have gone through and done whatever clerical work they want to do first," Keating said.

That's a problem in today's fast-paced world, she said, because it could result in important lawsuits never being brought to the public's attention.

"The reality is in this news cycle — if you don't learn about something for a couple of days, it gets lost," she said. "It gets buried in the next day's news."

Some cases might be settled or withdrawn before they are made public, she added.

In the past, the news service says in its complaint, reporters and others could walk into a court clerk's office and ask to see hard copies of newly filed documents before they were entered into the court system. Most cases are now filed electronically but aren't visible online until court staff review them, which typically happens within eight hours but can take days.

Court officials have the means to implement a modern version of the previous system, the organization argues, adding a vendor that leases e-filing software to courts has installed a "press review queue" for some of its clients, but New Mexico courts have refused to use it.

"They continue to enforce a no-access-before-process policy and practice that delays the news," says the complaint, which names as defendants state Administrative Office of the Courts Director Arthur Pepin, the First Judicial District Court Clerk's Office and First Judicial District Court Executive Officer Kathleen Vigil.

Federal Judge James Browning issued a preliminary injunction in October 2021 ordering state courts to stop withholding newly filed cases for longer than five hours.

The state appealed the ruling to the 10th Circuit, arguing filings don't become public record until they are accepted by the court and federal courts should leave the matter to the discretion of state courts.

State court officials, represented by the Attorney General's Office, also argued in the appeal five hours wasn't enough time for clerks to review cases for errors and confidential information.

Wednesday's ruling, authored by U.S. Circuit Judge Mary Beck Briscoe, hands down a split decision on New Mexico's appeal.

The opinion rejects the state's arguments that filings aren't public record until approved by the court and that federal courts should leave the matter to the state.

However, Briscoe granted the state's request that the preliminary injunction, giving courts only five hours to make filings available to the public, be struck down. She sent the case back to the U.S. District Court for more litigation.

"We conclude the district court's preliminary injunction does not accommodate the New Mexico Courts' judicial administration interests in extraordinary circumstances where the five-business-hour rule cannot reasonably be met," Briscoe wrote. "Therefore, we vacate the preliminary injunction and remand this case to the district court for further proceedings consistent with this opinion."

Courthouse News and the state were both unhappy with the five-hour time span "for different reasons," Courthouse News attorney Jon Fetterly said Monday. "The state courts thought it was too stringent and Courthouse too lenient, so this will be an issue going forward in the case."

Pepin did not respond to a call seeking comment Monday.

Vigil declined to comment.

Administrative Office of the Courts spokesman Barry Massey wrote in an email, "It remains uncertain how procedures will change because the federal appeals court remanded the case to the district court for further proceedings. There has been no final ruling on the amount of allowable time for processing a civil case document filed by a lawyer."