technology initiatives including systems that are designed and maintained by an independent state agency ultimately the district court concluded that the processing of newly filed civil complaint in these jurisdictions is unconstitutionally slow espous brown and now this court is taking up the issue there are numerous district court decisions across the country that have grappled with this is well but the st amendment issue your honor i do believe is a case of st impression in this country at least as it relates between the distinction between it was held there that the ventura county clerk had waived any argument about the a political of the of the common law versus the st amendment under the law the case doctrine because in prior proceedings that argument hadn't been raised so the issue regarding the not the common law in the st amendment governs this dispute is not only a matter of st impression in this circuit but in all federal circuits so the district court ultimately concluded that the st amendment demands it sta well contemporaneous was defined your honor to mean same day if practicable otherwise the next day and then when that stated year was applied to the backs the court held that there was a threshold percentage of eighty five to ninety percent which  sentially serves as a federally ordained floor on the administrative efficiency of these virginia state court houses i want to you know we were talking about the common law versus the st amendment it's important to keep in mind that this case is not a referendum on the common law will of openness for many decades in fact one court i read said that it predated the u s constitution itself virgin your law and the federal common law have presumed a right of the public to inspect and copy all judicial records and documents the clerks are very solicitous of these common law rights in fact the district court according to the district court the most damaging evidence of an unconstitutional custom or practice was the fact that as soon as the c n n that the clerks became aware that cns was dissatisfied with its level of access cns reported that the problem was quickly rectified thereafter we proceeded to litigate this case for many months all the while has conceded that it was receiving everything that it ultimately asked for a trial unlike the common law this court has repeatedly held that the st amendment guarantees access to judicial proceedings and specifically judicial proceedings that adjudicate substantive rights and necessary corollary is the right to access judicial documents that are sought in connection with those judicial proceedings at the core of this test is the definition of judicial proceedings itself this court is held the judicial proceedings are hearings or substitutes for trial examples like in the referee case where a summary judgment a motion was deemed to be a of substantive rights that was a trial like atmosphere or in the criminal realm and in re washington post this court held that criminal police hearings sentencing hearings are criminal trials are protected by the st amendment most recently in company dove versus public citizen this court held that the judicial decisions adjudicating a summary judgment motion were also encompasses within the st amendment guarantees a complaint is not a judicial proceeding rather it is the beginning of litigation the complaint does not adjudicate any substantive rights in the two thousand and sixteen opinion a c l u vs holder the eastern district of virginia rejected a st amendment challenge to automatic sealing provisions under the false claim act reasoning that the adversarial process does not even begin until a complaint is served and the defendant files a response the district court grounded its decision that the st amendment guarantees access to newly filed civil complaints under the experience and logic test experience and logic test has two prongs the history and the logic prong the the history prong asks whether the place in process has historically been open and the court concluded and i quote from page one thousand four hundred and ninety five of the joint appendix there is no dispute that historically courts have openly provided the press in general public with access to civil complaints the clerks don't dispute that either but this is merely a restatement of the common long rule of openness the touchstone of st amendment protection is the openness of historically open proceedings and not merely the fact go ahead and take you to another litigator can just talk with one breath so you know if you recognize that the civil complaints fit into the experience and logic just well your honor i recognize that i don't recognize th that is merely a restatement of the common law that is not what the st amendment guards against when the experience and logic test is talking about openness it's talking about openness of particular judicial proceedings so let me illustrate by you know if we talk about the recent opinion in company doe versus public citizen this is a two thousand and fourteen decision from this court the harm that is articulated in that case is that due to sweeping redactions and the student sued anonymous plaintiffs in that case that quote neither the public nor the press was able to monitor the progress of the litigation as it unfolded this relates to the ability of the public to observe and participate in historically open proceedings and specifically educating substantive rights so when we talk about openness it's the openness of the proceeding the preceding that's themselves and not merely the ability of the public to access documents that's important and in the company do versus public said citizen case the court said that the that there is a way that a minimal invasion of their right to access these documents can can wreak a st amendment harm and of course when we're talking about the ability of the press to monitor the progress of the litigation this becomes very important in the context of a summary judgment motion because if if the if the public is not able to see the sweeping redactions or even identify believe that what that reflects is that there is a good reason to require that access to documents be substantially contemporaneous with the occurrence of the proceedings that are at issue in the case what c n n s is doing in this case is they're trying to generalize this principle of law which is that certain proceedings that adjudicate substantive rights and the documents that are sought in connection with those proceedings which is a term of art that this kirk or his used repeatedly in the jurist jur trying to generalize that and say regardless of whether the documents are being sought in connection with the judicial proceeding we should be able to observe those documents from the very beginning and well do you can you explain to me what the harm is inner client by ordering your plan to do the harm to the harm to my client your honor is that there are momentous issues of federalism and there are momentous ramifications of this decision for the operation of state believe that we have or violated the rights of cns in this case it was undisputed virtually from the beginning of this litigation that cns was already getting all of the access that they saw weeds are we really to know the facts in the beginning they did not get the access they asked for it took twenty three months four months i don't know but finally they fit but it was but it was because they can even make a friend assume well i disagree with that your honor and the who are your dog players may well judge king if we disagree about the standard of review than i the record i mean there were no there were not factual disputes that were resolved in cns his favor there were things that were that came out at trial that related to the sufficiency of the data that the judge was relying on that that in our opinion no reasonable fact finder could conclude that there was sufficient evidence to show that the delays at issue existed here and just to give one example the data in this case that the that the district court ultimately relied upon in conducting its de novo review came from the exact office of the executive secretary of the supreme court of virginia which is an independent state agency and this is machine data that's coming from a system that the clerks use but it's it ministered to maintained by the office of the executive secretary one  court so under eight dollars d'esprit thirty one dollars the case is just sitting there the court calls the filer and says hey you didn't pay your filing fees you've got to come back and fix this maybe they come in in two dollars days maybe they come in in three days maybe they come in five days the evidence a trial the uncontroverted evidence a trial was that these problems were widespread they happen every day and but if you look at the delays the actual percentage of delays that are expressed in the courts data they contain perhaps delays that are attributable to the clerks process but they also contain delays that are attributable to finally fees which is a factor that's completely beyond the court's control now the only response from cns was that this has been presented as a theoretical possibility and then they were unable to quantify and the court basically said the same thing while mr matheson if you're on able to quantify this evidence then i don't know what you want me to do with it will other than saying that it happens every day nobody can quantify this evidence but this is going to have if we if we decide that this is a matter in which we must determine whether the st amendment applause of this experience prior decision and grow fresh i believe that contemporaneous is never has never been men and any decision from the supreme court of the united states are certainly not from this court to be measured in a matter of minutes or hours or even days so if we look at the court's conclusion even if we take it at face value that the vast majority of the complaints are being tendered within three court days of the initial filing and even if we look past all of the problems with the sufficiency of the evidence t the court relied upon i don't believe that those numbers reflect a constitutional violation as judge brinkema said in the a c l u versus holder decision your honor the adversarial process does not even begin until the complaint is served a defendant appears usually after twenty one dollars days and files a response similarly if we look at the summary judgment motion in the rush for decision you know summary judgment motions are usually filed and then there's another fourteen days followed by another seven days of briefing before hearing is even schedule the federal court system does not operate in a matter of minutes or hours or days cns is only seeking access to this information because they claim that the information is  newsworthiness but newsworthiness alone has never been a higher value that has been adjudicated under the st amendment rather the court has always relied on the common law and honestly the common law standard is the best and of care you could possibly articulate here because the common law requires us to look at the reasonableness under the totality of the circumstances so certainly if a member of c b s news comes into the clerk's office and says i want to see a copy of the complaint that was filed  jane doe versus john smith it would probably be unreasonable not to give them that person a copy of that complaint on the spot but that's not what this case is about cns is coming into our courthouses at the very end of the day and they're saying show me everything that was filed now that is a much more onerous request particularly when maybe the mail didn't arrive until three o'clock maybe so somebody came into the clerk's office at the end of the day and they they did one can tell the district court that you have witnesses saying that this was so onerous you couldn't do it we didn't say that it was it was so onerous that we couldn't do it but we certainly a deuced significant testimony both from deputy clerks and from the clerks themselves that talked about what their process was what time the mail comes in what time what the court held was that there was a voluntary sensation and we argued under abstention principles under move miss or under general equitable principles that that this case should have been dismissed in finding that the case was not moot judge morgan hell excuse me the district court held that there was a voluntary suspicion but there was no evidence of a voluntary says sation the evidence was that we didn't even know who cns was until this lawsuit was filed and then is soon as we were on notice of the fact that they thought the st amendment because it's rooted in the adjudication of substantive rights and the ability to observe proceedings that the immediate and contemporaneous would have to relate to the process in questions so if there is a summary judgment hearing immediate and contemporaneous wouldn't be three weeks after the hearing is concluded if it's a criminal sentencing hearing mediating contemporaneous wouldn't mean or if i would have been given contemporaneous mean in so far as being able to access civil complaints case low here it is says contemporaneous then brings in this whole business you know could be an infringement on the st amendment so so live in that world where i'm saying and then you've told me everything is not with regard to the filing of civil complaints and i'm simply asking you since you say judge it's in is totally over his rocker he's well you did say those words i know that his you're more respectful but but you're saying he's not correct on that so what then if we are in that venue a st amendment spears in logic what then do you say one of these circumstances i'm not talking about all the different proceedings the militia you know i'm talking about the phone the complaint was contemporaneous i think that the court has two choices  the st choice is that the court draws a bright line which is what the district court did which is same day if practicable and if not the next day or the court can simply do what has always been the common law and say reasonable under the totality of the circumstances and let me tell you why it is a bad idea for this corps to go with the same day of practicable standard because aside from the momentous issues of federalism and the fact that this is going to usher in on president an era of federal entanglement with state court judiciaries this court is going to suffocate the ability of the states to implement nascent technologies to resolve disputes over access to so that the issue in this case is does the st amendment right of access apply and the parks conceded in their st filing below that this court would likely file find a st amendment right of access to newly filed complaints but now they contend referred to twenty one days and told an answer is filed but this court has already extended the st amendment right of access to complaints filed yes in connection with summary judgment on wings and summary judgment opinions in company d here noted that a complaint friends the issues for trial just as summary judgment is a substitute for for trial and in finding that a st amendment right of access exists as it applies to complaints the district court applied both the experience in logic test and the analytical test and found that both were satisfied and as to the historical availability of complaints to the press the district court concluded paragraph eight of its findings of fact that historically the press had access to complaints at the end of every day and the district court also noted that the nine other federal courts to have considered this issue found a st amendment right of access to compliance now in timing the district court followed this court's dictate in company during which held that were a st amendment right of access exist access must be contemporaneous and company do stated that the public benefits of open proceedings are compromised by delayed disclosure of documents and then said that each passing day may constitute a access the district court st reviewed dictionary definitions of that term at or near the same time and then noted that legal news like other news has a very short shelf life and ultimately concluded that contemporaneous access to new complaints needed to be on the day of filing in so far as practicable and is not practicable within one court day stating that eighty five to ninety percent access would suffice i want to emphasize the courthouse news has not sought immediate or instantaneous access or access at the moment of filing as the clerks from putatively suggest what were fired and he said that were practicable and he accounted for the possibilities that the clerks raised in the course of the trial and he said that eighty five to ninety percent access same day would suffice and significantly the court noted that over the months between the filing of the complaint and the trial access in these courts improved dramatically so that by the time of trial access in both i tried to enter size is a courthouse news was not seeking media access or access at the moment to find out now to get her sorry or i thought you said you wanted the same day or court's definition of contemporaneous axis is the historical access that the press has had and that is on the day of filing by the end of the day the kind of access that these clerks were able to achieve months after this that's exactly what i thought were good ordered judge morgan ordered that eighty five to ninety percent of access to new file cases on the same date would suffice to meet his contemporaneous access requirement my judgment to your point about technology judge morgan also observed that the advent of new technology in courts across the country could have a real impact on this issue but in the commonwealth of virginia in both of these courts fewer than ten percent much fewer than ten percent are electronically solved so we are still dealing with a paper court and in this paper court judge morgan concluded that contemporaneous access would be allowing the press to see what they have seen in courts across the country for decades see the cases by the end of the day fire and judge morgan found that the access improvement in these cases was a significant fact he observed that access had steadily improved now within a couple of months  in the course of the eighteen months to train the filing of the complaint and the time of trial x has improved from a low of nineteen percent same day access to ninety two percent in norfolk and from forty two percent to ninety three percent  hired no digital personnel no procedures were changed during this period and there was no just russian of their offices and has to be a comment about voluntary  they argue that there is no voluntary sation of the offending conduct but they can see it in their brief and it was only natural for them to speed up the processing of newly filed cases once the complaint in this act in this action was filed now doesn't does it is it is it mandated i mean it seems like to me there's been some effort to come together on this at least in terms of the clerk's there's been articulated some reasons that would indicate well we've got some internal problems is going to make it really difficult for us to comply and yet they've been  was said a bright line rule on this this is applied to rule county like it does to metropolitan counties does that mean that you got different places all over and when i start to plead a rule that is bright line is that depending on their budgets or staffing or other factors and so when he said same day where practicable he was giving the courts some wiggle room he was not providing a bright line rule and his ultimate declaratory judgment was informed by the fact that for a number of months prior to trial clerk seemed to be able to meet not only his threshold number but seemed to be able to exceed that and i also want to point out that that once the court concluded the courthouse news net its urban of establishing the substantial delays the burden shifted to  defendants to offer evidence on their purpose and lending access and the district court concluded that the clerks did not provide any evidence at all either under the strict scrutiny or the intermediate scr scrutiny standards that they failed to introduce evidence that their practices were narrowly tailored to serve either a compelling or a substantial interest your  these claims before making them public can you but can you tell me how much did the late is attributable to other factors like incorrect filing fees or redacting of private information or your own or incorrect filing fees is an argument that the clerks made before the district court and the district court considered the contention and rejected it and it rejected it because the clerk seal to offer any evidence whatsoever that there was even a single filing that was made within in adequate filing fee on day one dollar that was not corrected until the next day that is the only circumstances  only circumstance when an inadequate filing would have an impact on the delay calculation even their expert relied on the o e s filing data without making any modifications whatsoever kirks felt that this inadequate filing fee had such a huge impact on the delayed calculations they had eighteen months after the filing of the complaint before trial to track those delays they are in complete control that information and they could have asked their clerk at the st front counter to just record how many times and in adequate filing fee if we were to maybe just summarily decide this something falls always as a problem what is contemporary what is excess and questions that nature you have a go in terms of painting the complaints they have a goal of doing their job i don't think there's anything to indicate that they are nefarious in not wanting you to have it is basically what they're going to is talking about how practical it is in how much is going to be a burden on offices and maybe as you say the budget concerns that were brought up and add more people that sort of thing but it seems to me they ought to be something you can work out amongst you know if you can get off of the business of whether the common law apply as a st amendment we say  to we have to formally as you say apply across the board in a very narrow way well your honor prior to filing this lawsuit courthouse news approached personnel and both courthouses and asked  see specific complaints that had been filed in the course of the day and most instances they were told by supervisory personnel i think could not see complaints until they are fully processed and indexed and scanned and posted on the public access terminals in the courthouse so we attempted to gain access prior to filing suit and the district who are considered all of that evidence and also considered the relative burdens on the clerks as demonstrated by the fact that they were able to achieve contemporaneous access after this case was filed and that did not disrupt their operations but the just how do you how do you see them before this and if so where in california you're trying to see a complaint in virginia you mean it actually in all is this is you're talking about your actual presence at that clerk's office  that right or you talk them out of getting being able to access it at a distance the incidents i just mentioned your honor were our reporter physically going into the courthouse and asking the car if they could see specific complaints so that i want to be clear on that because up to i think this is that scanning aspect of it seems to me that makes it much more available you know in places and maybe you do want to send a reporter to every one of the clerks offices in every state to access this and you have a financial reason for doing this but i'm just trying to understand that your access is you should be to walk into the clerk's office in immediately see the file five minutes before the offices closed on your honor that's why that's why judge morgan's statement of the rule access where practicable and giving the clerk's wiggle room of up to fifteen percent certainly accounts for the cases filed at the end of the day as to electronic access to the federal courts we can see every complaint that's filed in the eastern district of virginia online on pacer from anyplace in the country broker a settlement before trial and after summary judgment and suggested the parameters of where he was going and asked the parties to come to an agreement and then to understand it brokering i was offering was with some guidance the take off some of the issues off the table and said this is the world you did you know st amendment world and this is this is needed but there's a practical aspect of it is you know rather than fight in court can you get together and says ok this is what the quest can do this is what we would like and i don't know it seems like to me that would be a practical way to do this until the technology gets to the point where you get basic you can pick it up well with all due respect your honor that is exactly what judge morgan attempted to achieve and that's the health and we were put through eighteen months of litigation and a four day bench trial following which the district court made evidence for even rulings findings of fact and concluded that his concern that the clerks would revert back to their prior practices if he did not issue to clear a jury relief required him to issue that relief so i see my time is up if i may  great big awards there this is like a gold mine you just go around the country suing small court houses so that all of jeff's wins good suggestion that you settle issue not interested in settling right we were really very good your honor we were very interested in selig settling just before we went to trial in this action and before eighteen months of litigation just a bit that's a different time you told i thought you just told us the church morgan tried to settle things but i assume that was after trial before trial that was more than a trial your honor sorry your honor judge morgan trying to settle the case before trial and after the summary judgment  that there were efforts to settle the case right at the beginning and they did not go anywhere your honor and and your honor maybe i shouldn't take exception out courthouse news expended far more than two million dollars in this case and quite frankly my client is proud to bring actions in several courts across the country asserting its st amendment rights which she were media media outlets are able to do at this time so i don't think that courthouse news or the council quite frankly should be criticised for bringing of you know that so that that that maybe something we maybe the least maybe some other congress or so in these to deal with but i guess a little if i may just comment on that your honor there was one courthouse news case and i handled in the state of vermont and we provided the attorney general or from our with a copy of our preliminary injunction papers before we filed them we said we would like you to look at the law here we think we are right and after three days the sta i personally attempted it and before the case was filed our personnel went to the court house and asked for access to these newly file complaints and at the time that they were seeking access there were delays of many days in seeing newly filed civil complaints in these courthouses so this was something that was attempted and th i'm listening that's what i said your friend here i thank you roger thank you important timely access to merely by out civil complaint is from a practical level as news organizations i meet the rely on the contemporaneous right of access to newly filed civil complaint every day to report the news to the media some of the  organizations there are porters to courthouses on a daily basis to access nearly buyouts the complaints are that they can report news to the public when it is fresh as a result the court's decision today will have a direct impact on the prices ability to obtain reporting especially in today's fast paced digital environments and civil complaints are most newsworthy when they are filed that's why many c m s subscribers should your whole your whole argument is going to st assuming we're going reason i went there is that's a good policy argument sounds like you'd be good folk before a congressional hearing i'm trying to tie it into which legal issue you make in this other then it's a good idea we get whatever you do is going to be good for the people it's go great well when you don't lift a legal constitutional issue sometimes we just have to make it like the law says it is and that's the only reason i brought it up when they had to say how are you trying to see into the legal issue that's honor and i know where the end of the day i'm going to be very brief here are you know there's a critical piece of the puzzle here that i think is very important for the court to understand that is that if you look at the complaint that c s filed in this case the complaint was about with c n n s calls behind processing access so they were asking us to change the order in which we were in taking documents into our court system which we have always order that we do the administrative processing for extremely complex reasons that are beyond the scope of this appeal without adversely affecting the public's access to that information because we're already doing it as efficiently as we can the thirty six deposition the southeast regional bureau chief for cns ron abbott testified that he was seeking one hundred percent same day it wasn't until we got to trial where suddenly eighty five to ninety percent was good enough so for the purpose of the voluntary suspicion argument i think it's important to understand that you know in we talk past each other with the district court about this repeatedly that we never said that we couldn't provide the information as quickly as we were providing it what we were never willing to do was to completely turn oh yess not the clerks the office of the executive secretaries system for processing these complaints on its head in order to comply with this one hundred percent same day bill the availability standard of care so when we get into a voluntary says station for purposes of movements your honors i'd ask the court to consider the fact that the clerks didn't even know who cns was before this case was filed in the evidence was that is soon as we were aware of their complaints that every problem in cns is mind at least into the position they took a trial was completely rectified but that doesn't reflect a voluntary says ation there's no finding from the district court in this case that the clerks have engaged in any unconstitutional policy there was never a letter with it sent to either of these clerks there was never a meeting with either of these clerks this is all in the record so as soon as the courts find out that they have a problem and ok so they go back and they look at their fist um and they figure out that they're doing things faster i mean judge the judge morgan used the word profit he said the clerk sheaffer prodded his deputy clerks to work harder to dig to get the complaints done but that doesn't reflect an unconstitutional customer practice that reflects th grievance with the clerk's office about how quickly they were getting access and they surreptitiously collected all this data for six months without having a single meeting with these clerks and then they hit us with a lawsuit and then when the numbers dramatically improve because suddenly we have notice of this issue the court calls that a voluntary says sation that's not a cessation so actually do send it back to the judge to polo whole or discovery and into evidence to be taken by testimony from the clerks in terms of determining this no your honor that all of this evidence was in the record at trial that the district court simply disregarded it in reaching the conclusion that the  minute amendment have been violated the only relief that is appropriate here is for this court to enter a judgment for the clerk's reversed the district court's opinion and of a caveat ward of attorney's fees in this case either because the st amendment was not violated or if the court disagrees because the contemporaneous standard of care in this case is not a proper statement of the law because this court is concerned about the momentous federalism problems with the  entanglement with state court clerk with the certain issues were certified to us i don't think that was his neck correct and judgements i'm glad you asked that question this is we have also filed an appeal as of right  issues of of the improper venue with respect to smith who whose constituency is in prince william and she was tried before and more for judge in this case and the issue of abstentions squarely before this court if you look at the rule fifty eight case law and there was never a separate document objection made in this case and we're certainly one hundred and fifty days past the entry of that judgment but if you look at the rule fifty eight case law this court has repeatedly said that this separate document rule exists to  protect appellate rights in litigates a ability to seek appellate review not as a sword to defeat an appeal that would otherwise be proper so if this court finds that our notice of appeal is not properly lodged then the result is going to be that you're going to remain on those issues back to the district court and we're just going to come right back as soon as the court enters rule fifty eight dollars separate documents so i don't see any value in the court declining to review those issues in one appeal and your honors i really appreciate your time and the extra time that you've given both of the parties in this case i believe this is an important case i'm out of time so you all have a good day thank you for your consideration you very much thank you all good health