Courthouse News Serv. v. Schaefer

2 F.4th 318

COURTHOUSE NEWS SERVICE, Plaintiff – Appellee,

v.George SCHAEFER, in his official capacity as Clerk of the Circuit Court for Norfolk, Virginia; Jacqueline Smith, in her official capacity as Clerk of the Circuit Court for Prince William County, Virginia, Defendants – Appellants,Reporters Committee for Freedom of the Press; ALM Media, LLC ; The Associated Press; Atlantic Media Inc. ; Boston Globe Media Partners, LLC; California News Publishers Association; First Look Media Works, Inc. ; International Documentary Association; Investigative Reporting Workshop at American University; Investigative Studios; The Media Institute; MPA - The Association of Magazine Media; National Association of Broadcasters; National Freedom of Information Coalition ; National Press Club Journalism Institute; The National Press Club; National Press Photographers Association; The News Leaders Association; NewsGuild-CWA, The; Radio Television Digital News Association; The Society of Environmental Journalists; Society of Professional Journalists; Virginia Coalition for Open Government; Virginia Press Association; The E. W. Scripps Company; The New York Times Company ; Sinclair Broadcast Group, Incorporated ; Gannett Company, Incorporated; Politico LLC, Amici - Supporting Appellee,Courthouse News Service, Plaintiff – Appellee,

v.George Schaefer, in his official capacity as Clerk of the Circuit Court for Norfolk, Virginia; Jacqueline Smith, in her official capacity as Clerk of the Circuit Court for Prince William County, Virginia, Defendants – Appellants,Reporters Committee for Freedom of the Press; ALM Media, LLC ; The Associated Press; Atlantic Media Inc. ; Boston Globe Media Partners, LLC; California News Publishers Association; First Look Media Works, Inc. ; International Documentary Association; Investigative Reporting Workshop at American University; Investigative Studios; The Media Institute; MPA - The Association of Magazine Media; National Association of Broadcasters; National Freedom of Information Coalition ; National Press Club Journalism Institute; The National Press Club; National Press Photographers Association; The News Leaders Association; NewsGuild-CWA, The; Radio Television Digital News Association; The Society of Environmental Journalists; Society of Professional Journalists; Virginia Coalition for Open Government; Virginia Press Association; The E. W. Scripps Company; The New York Times Company ; Sinclair Broadcast Group, Incorporated ; Gannett Company, Incorporated; Politico LLC, Amici - Supporting Appellee.

No. 20-1290

No: 20-1386

United States Court of Appeals, Fourth Circuit.

Argued: March 9, 2021

Decided: June 24, 2021

ARGUED: Michael Gordon Matheson, THOMPSONMCMULLAN, P.C., Richmond, Virginia, for Appellants. William Jonas Hibsher, BRYAN CAVE LEIGHTON PAISNER LLP, New York, New York, for Appellee. Jennifer Anne Nelson, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C., for Amici Curiae. ON BRIEF: William D. Prince IV, THOMPSONMCMULLAN, P.C., Richmond, Virginia, for Appellants. Heather S. Goldman, Bryan J. Harrison, BRYAN CAVE LEIGHTON PAISNER LLP, Washington, D.C.; Conrad M. Shumadine, WILLCOX & SAVAGE, P.C., Norfolk, Virginia, for Appellee. Bruce D. Brown, Katie Townsend, Caitlin Vogus, William Powell, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C., for Amici Curiae The Reporters Committee for Freedom of the Press and 28 Media Organizations.

Before MOTZ, KING and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge King and Judge Wynn joined.

DIANA GRIBBON MOTZ, Circuit Judge:

Courthouse News brought this action after its reporters could not obtain prompt access to newly filed civil complaints from two Virginia courts. After a four-day bench trial, the district court found that the Clerks of those courts had not made the complaints timely available to the press and public, violating the First Amendment right of access to such documents. Accordingly, the district court granted a declaratory judgment so holding, which the Clerks now appeal. We affirm.

I.

Courthouse News is a news service that reports on civil litigation in state and federal courts throughout the country. It assigns reporters to cover federal and state courthouses. One of its publications — the New Litigation Report — provides summaries of newsworthy civil complaints filed each day. To compile the summaries, reporters typically visit their assigned courthouses near the end of each business day to review and report on the complaints filed that day.

Among the courts covered by Courthouse News are the Circuit Courts of the City of Norfolk and County of Prince William, Virginia. The Clerks of those courts — George E. Schaefer and Jacqueline C. Smith, respectively — act as the custodians of all records, including civil complaints, in their respective courts.

In fall 2017, when reporters from Courthouse News began daily coverage of the Norfolk and Prince William courts, they experienced delays accessing newly filed civil complaints. The reporters started to track the delays, measuring the difference between the filing date of a complaint and the time at which it became available to them over a period of several months ("the tracking period"). In July 2018, after several months of tracking, Courthouse News filed this suit against the Clerks. It sought declaratory and injunctive relief, alleging that between January and June of 2018, the Clerks unnecessarily delayed access to newly filed civil complaints in violation of the First Amendment.

After resolving preliminary motions, the district court conducted a bench trial. At the trial's conclusion, the court issued a detailed opinion granting a declaratory judgment but denying injunctive relief. The court held that the First Amendment guarantees the press and the public a contemporaneous right of access to newly filed civil complaints, which requires courts to make complaints available as soon as practicable. The district court then carefully applied this standard to the facts in this case and concluded that the Clerks had not provided sufficiently prompt access to the requested documents.

Upon review of the evidence and expert testimony offered at trial, the court made detailed findings concerning the duration and frequency of delays throughout the tracking period. The district court found that, at times, the portion of complaints made promptly available was quite low. For example, in May 2018, the City of Norfolk court made only 19% of the complaints available on the day of filing, and 22% of the complaints were not available until two or more court days after filing. Similarly, in July 2018, the Prince William County court only made 42.4% of the complaints available on the day of filing and 41.5% of the complaints were not available until two or more court days after filing.

The district court also found that after Courthouse News filed suit, both Clerks significantly improved access to documents in their courts without hiring any new employees or changing employee or court hours. By the end of November 2018, the Norfolk City court made 92.3% of newly filed civil complaints available on the day of filing and 100% of complaints available within one court day of filing. Similarly, for the last three months of the tracking period, the Prince William County court made at least 88.1% of the complaints available on the day of filing and approximately 96.5% of complaints were available within one day of filing.

In light of these facts, the district court held that in order to satisfy the First Amendment's access requirement, the Clerks must make newly filed civil complaints available on the same day of filing when practicable, and where not practicable by the end of the next court day. The court went on to explain that minor deviations from this standard or deviations due to extraordinary circumstances would not amount to constitutional violations. Given that both Clerks had fallen far short of this standard without any justification for the delays, the court concluded that they had denied Courthouse News's First Amendment right of access.

The Clerks timely noted this appeal.

II.

The Clerks raise several procedural arguments, some of which challenge our jurisdiction. We address these issues before turning to the merits. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

A.

First, the Clerks argue that this case is moot because they have minimized document-access delays since Courthouse News initiated this suit.

A case becomes moot when "the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt , 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam) (quoting U.S. Parole Comm'n v. Geraghty , 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ). But "a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued." Already, LLC v. Nike, Inc. , 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013). We refer to this nuance in the rules of mootness as the voluntary cessation doctrine. Id. Without it, "a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends." Id. A defendant asserting mootness thus "bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc. , 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

The Clerks do not attempt to meet this high burden. Instead, they argue that voluntary cessation requires evidence of a formal change in policy or practice — evidence that is absent from the record here. They are wrong. Whenever "a defendant retains the authority and capacity to repeat an...