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    Courthouse News Service v Karl R. Hade et al Verified listing

    • Date
      March 1, 2021
    • City/County
      Alexandria, VA
    • Type of Case
      First Amendment Freedom of Speech,
    • Case Details
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    Title

    Courthouse News Service v Karl R. Hade et al

    State or Country
    Virginia
    Judges

    Case 3:21-cv-00460-HEH

    Henry E. Hudson wrote a book called "The Quest of Justice" He brags how he lied to the entire Virginia Legislature - He is Corrupt

    Defendant

    KARL R. HADE, et al.

    Jacqueline Smith Clerk of Court Prince William County @smithforclerk

    George Schaefer, as clerk of the Circuit Court for Norfolk

    Karl R. Hade
    Executive Secretary
    Alternate Contact, Supreme Court of Virginia

    khade@vacourts.gov
    (804) 786-6455
    (804) 786-4542 fax

    A federal judge has ordered Jacqueline Smith, as clerk for Circuit Court in Prince William, and George Schaefer, as clerk of the Circuit Court for Norfolk, to pay $2 million in attorney fees after ruling against them in a First Amendment case related to timely access to court records.

    Plaintiff Attorney

    Bryan Cave Leighton Paisner LLP
    Adam L. Shaw (VSB No. 89559)
    Heather S. Goldman (admitted pro hac vice)
    1155 F Street, NW, Suite 700
    Washington, DC 20004
    Telephone: (202) 508-6000
    Facsimile: (202) 508-6200
    adam.shaw@bclplaw.com
    heather.goldman@bclplaw.com
    Jonathan E. Ginsberg (admitted pro hac vice)
    1290 Avenue of the Americas
    New York, NY 10104
    Telephone: (212) 541-2000
    Facsimile: (212) 541-4630
    jon.ginsberg@bclplaw.com
    Counsel for Plaintiff
    Courthouse News Service

    Others that affected your case

    All Citizens of Virginia

    Judges Comments

    Henry E. Hudson, Senior United States District Judge.

    MEMORANDUM OPINION (RESOLVING DEFENDANTS' MOTIONS TO DISMISS)

    Henry E. Hudson, Senior United States District Judge.

    THIS MATTER is before the Court on Defendant Karl Hade's ("Defendant Hade") Motions to Dismiss (ECF Nos. 22, 24) and Defendant Jacqueline Smith's ("Defendant Smith") Motion to Dismiss (ECF No. 26) all filed on October 12, 2021. Courthouse News Service ("CNS" or "Plaintiff) filed its Amended Complaint on September 14, 2021, alleging that Defendants' enforcement of two Virginia statutes violates the First Amendment of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment. (Am. Compl., ECF No. 21.)

    The Court will refer to Defendant Hade and Defendant Smith collectively as "Defendants."

    Plaintiffs original Complaint was filed on July 15, 2021. (Compl., ECF No. 1.)

    Defendants argue in their Motions to Dismiss that Plaintiff fails to state a claim upon which relief may be granted. Defendant Hade additionally argues that he enjoys sovereign immunity and thus, this Court does not have subject matter jurisdiction over him. (Def. Hade's Mem. Supp. at 4-5, ECF No. 23.) The parties have submitted memoranda in support of their respective positions. On January 10, 2022, the Court heard oral argument on the issues, and the Motions to Dismiss are now ripe for review. For the reasons stated herein, the Court will grant the Motions as to Count Three but deny the Motions in all other respects.

    I. BACKGROUND

    At its foundation, this case involves a web of Virginia statutes that govern public access to civil court records. In Virginia, the clerk of the circuit court for each county "shall have custody of and shall keep all court records ... in their offices or at such location otherwise designated by the clerk." Va. Code § 17.1-242. In all Virginia circuit courts, clerks provide the public with access to these court records at the physical courthouse. (Am. Compl. 13.) Beyond access at the courthouse, some circuit courts provide access to civil court records remotely, via the internet, on a system called "Virginia Officer of the Court Remote Access" ("OCRA"). (Id. 13.) It is optional for each circuit court clerk to have their records accessible via OCRA, but approximately 90 circuit courts do so. Va. Code § 17.1-293(E)(7); (Am. Compl. f 35).

    Those filing civil court records must redact all but the last four digits of social security numbers, driver's license numbers, and other identification numbers. Va. Code § 8.01-420.8(A).

    OCRA provides online access to the same civil court records that are accessible at physical courthouses. (Am. Compl. ¶ 52.) However, OCRA is subject to two important statutory limitations. First, OCRA is only accessible to Virginia-licensed attorneys, their staff, and related government officials (the "non-attorney access restriction"). Va. Code § 17.1-293(E)(7). Second, OCRA users may not sell, post, or redistribute to a third party any "data" accessed on OCRA unless the "data" is included in a product or service created by the OCRA user and the data is not made available to the general public (the "dissemination restriction"). Id. § 17.1-293(H).

    The full text of Va. Code § 17.1-293(E)(7) reads:

    [A clerk may provide] secure remote access to nonconfidential court records, subject to any fees charged by the clerk, to members in good standing with the Virginia State Bar and their authorized agents, pro hac vice attorneys authorized by the court for purposes of the practice of law, and such governmental agencies as authorized by the clerk.

    The full text of Va. Code § 17.1-293(H) reads:

    Nothing in this section shall be construed to permit any data accessed by secure remote access to be sold or posted on any other website or in any way redistributed to any third party, and the clerk, in his discretion, may deny secure remote access to ensure compliance with these provisions. However, the data accessed by secure remote access may be included in products or services provided to a third party of the subscriber provided that (i) such data is not made available to the general public and (ii) the subscriber maintains administrative, technical, and security safeguards to protect the confidentiality, integrity, and limited availability of the data.

    Even so, circuit court clerks may provide the public with remote online access to civil court records via their own case management system outside of OCRA. (Id. § 17.1-225.) While this option is available, the Amended Complaint does not mention any circuit court that has created such a system.

    The information a circuit court clerk may provide via a public remote access system is also more limited than the information available on OCRA. OCRA may contain documents with actual signatures, dates of birth, maiden names, and the names of minor children, while public online remote systems may not. See Va. Code §§ 17.1-293(B), (E)(7). Of course, filings in OCRA, or an additional system created by a circuit court clerk, would also have confidential information redacted according to Va. Code § 8.01-420.8(A); see Id. § 17.1-293(A) (requiring full redaction in a non-OCRA online system).

    CNS is a nationwide news service that reports on civil cases in all 50 states including Virginia (Am. Compl. H 24), and CNS reporters have traditionally traveled to Virginia circuit courts in each county to access the civil court records provided in physical courthouses. (Id. H 31.) In an effort to save money and travel time, CNS asked many circuit court clerks for access to OCRA even though its staff members are not licensed attorneys. (Id. 64.) Every circuit court clerk denied CNS access to OCRA. (Id.)

    Despite the statutory prohibition, the Clerk of the Circuit Court for Prince William County, Defendant Smith, offered to give CNS access to OCRA for a higher price than Virginia attorneys. (Id. fl 65-74.) At the hearing on January 10, 2022, however, counsel for Defendant Smith made clear that she no longer offers CNS access to OCRA and, in her opinion, the Virginia law bars her from doing so.

    As CNS was seeking access to OCRA through individual circuit court clerks, it also sought access through the Office of the Executive of the Supreme Court of Virginia ("OES"). Defendant Hade is the Executive Secretary of OES. While circuit court clerks upload court records to the system and control those records, OES "operates and maintains" the servers and websites that OCRA exists on. Va. Code § 17.1-502(A); (Am. Compl. 1(16).

    When CNS asked OES for access to OCRA, OES stated that it was not legally authorized to provide access because OCRA is limited to "members in good standing with the Virginia State Bar" and all court documents, though viewable on OCRA, are "under the custody and control of the circuit court clerks." (Am. Compl. H 72.) Moreover, OCRA's website, which OES controls, states that OCRA "is intended solely for the use of authorized Officer of the Court personnel... and [a]ll other use is expressly prohibited." (Id. H 53.) Lastly, Robert Smith, then-Director of the Department of Judicial Information and Technology for OES and an employee of Defendant Hade, stated that it has "always been [OES'] stance that the [Va. Code] does not support providing [OCRA] to anyone other than members of the bar." (Id. 159.)

    CNS now brings three claims via 42 U.S.C § 1983 against Defendants. First, CNS alleges that Defendants' enforcement of OCRA's non-attorney access restriction, Va. Code § 17.1-293(E)(7), violates the First Amendment (Count One). (A/fl| 86-93.) Second, CNS alleges that Defendants' enforcement of OCRA's dissemination restriction, Va. Code § 17.1-293(H), violates the First Amendment (Count Two). (Id. ¶¶ 86-101.) Third, CNS alleges that Defendants discriminated against it by enforcing OCRA's non-attorney access restriction in violation of the Equal Protection Clause of the Fourteenth Amendment (Count Three). (Id. ¶ 102-107.)

    II. STANDARD OF REVIEW

    First, Defendant Hade submitted a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1). (ECF No. 22.) A motion made pursuant to Rule 12(b)(1) challenges the Court's jurisdiction over the subject matter of a complaint. Such a challenge can be facial, asserting that the facts as pled fail to establish jurisdiction, or factual, disputing the pleadings themselves and arguing that other facts demonstrate that no jurisdiction exists. Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017) (quoting Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)). For a facial challenge, "the plaintiff is 'afforded the same procedural protection as she would receive under a Rule 12(b)(6) consideration.'" Id. Defendant Hade is making a facial challenge. (Def. Hade's Reply at 2, ECF No. 37.) Thus, the familiar Rule 12(b)(6) standard of review applies to his Motion to Dismiss even though it was motioned for under Rule 12(b)(1). See Beck, 848 F.3d at 270.

    A Rule 12(b)(6) motion "does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses." Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (quoting Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). "A complaint need only 'give the defendant fair notice of what the . .. claim is and the grounds upon which it rests.'" Ray v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (alteration in original) (quoting Tobey, 706 F.3d at 387). However, a "complaint must provide 'sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Turner v. Thomas, 930 F.3d 640, 644 (4th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "Allegations have facial plausibility 'when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Tobey, 706 F.3d at 386 (quoting Iqbal, 556 U.S. at 679). A court, however, "need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments." Turner, 930 F.3d at 644 (quoting Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)). In considering such a motion, a plaintiffs well-pleaded allegations are taken as true, and the complaint is viewed in the light most favorable to the plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). Legal conclusions enjoy no such deference. Iqbal, 556 U.S. at 678.

    III. ANALYSIS

    First, Defendant Hade asks the Court to dismiss Plaintiffs Amended Complaint under Rule 12(b)(1) because he enjoys sovereign immunity under the Eleventh Amendment. The Eleventh Amendment "render[s] States immune from being hauled into federal court by private parties." Wright v. North Carolina, 878 F.3d 256, 261 (4th Cir. 2015). State officers being sued in their official capacity receive sovereign immunity to the same extent as the state itself. Will v. Michigan Dep 't of State Police, 491 U.S. 58, 71 (1989). Ex Parte Young, 203 U.S. 123 (1908), however, creates an expansive exception to sovereign immunity where state officers may be sued in their official capacity when the plaintiff is only seeking prospective injunctive relief to remedy the enforcement of an unconstitutional statute. Id. at 159-60. To fit within the exception, the officer must have a "special relation" to the challenged policy or statute; and (2) the officer must have "acted or threatened" to enforce the policy or statute. McBurney v. Cuccinelli, 616 F.3d 393, 402 (4th Cir. 2010).

    Defendant Hade argues that he has no special relation to the challenged statutes here and never acted or threatened to enforce them. Yet, the Amended Complaint contains many factual allegations to the contrary. First, when CNS asked OES for access to OCRA, OES sent a letter denying CNS access because access is limited to "members in good standing with the Virginia State Bar" and because circuit court clerks control the information in OCRA, not OES. (Am. Compl. K 72; see OES Letter, ECF No. 21-6.) Defendant Hade argues that this letter proves he has no authority to grant anyone access to OCRA and instead circuit court clerks must grant access. Read more closely, however, the letter stipulates that OES refused to grant CNS access for two reasons. While one of these reasons was that circuit court clerks were the ultimate controllers of all court records, the other reason was the exact issue in this case: CNS and its reporters are not Virginia-licensed attorneys. This statement creates the reasonable inference that, even if CNS received permission from a circuit court clerk to access OCRA, Defendant Hade and OES would still deny CNS access because its reporters are not attorneys. See Tobey, 706 F.3d at 386.

    Moreover, the OCRA website, which Defendant Hade operates and maintains, states that OCRA "is intented solely for the use of authorized Officer of the Court personnel... and [a]ll other use is expressly prohibited." (Am. Compl. ¶ 53.) Even if CNS received permission from a circuit court clerk to access OCRA, it would still be confronted with this overt warning that, since its employees are not attorneys, its access is "expressly prohibited." (Id. ¶ 53.) Lastly, an OES employee, in response to a deposition question, stated that it has "always been [OES'] stance that the [Va. Code] does not support providing [OCRA] to anyone other than members of the bar." (Id. ¶ 59.)

    Based on the Amended Complaint, even accepting Defendant Hade's argument that he does not have unilateral control over court records inside of OCRA, CNS has adequately alleged that he maintains a "special relation" to the challenged policy and has "acted or threatened" to enforce it. McBurney, 616 F.3d at 402. Thus, the Court has subject matter jurisdiction over the claims against Defendant Hade and his Motion to Dismiss will be denied.

    If discovery reveals that Defendant Hade does not have any power to enforce the challenged statutes, then he may, of course, make an appropriate motion at a later stage in this case.

    Next, the Court turns to Defendants' Motions to Dismiss under Rule 12(b)(6). (ECF Nos. 24, 26.) In Count One, Plaintiff alleges that Defendants' enforcement of OCRA's non-attorney access restriction, Va. Code § 17.1-293(E)(7), violates the First Amendment. It is well-settled that the press and public have a right of access to most, if not all, civil court records. See Courthouse News Serv. v. Schaefer, 2 F.4th 318, 328 (4th Cir. 2021) (finding a right to reasonable contemporaneous access to civil complaints); Rushford v. New Yorker Mag., Inc., 846 F.2d 249, 253 (4th Cir. 1988) (finding right to access summary judgment documents). Federal courts and most state courts allow the public to access these civil records via an online remote system. (PL's Mem. Opp'n at 23-24, ECF No. 33.) Plaintiff, however, is not alleging that the public has a fundamental right to remotely access civil court records guaranteed by the First Amendment. Instead, Plaintiff argues that //Defendants provide Virginia attorneys remote access to civil court records, then the First Amendment also requires them to provide the public with remote access.

    If that were Plaintiffs contention, the experience and logic test would guide this Court's analysis. Press-Enter. Co. v. Superior Ct., 478 U.S. 1, 8-10 (1986); Schaefer, 2 F.4th at 326. While parties discuss the experience and logic test at length in their briefs, the Court need not do so here because, applying the test, the United States Court of Appeals for the Fourth Circuit has already held that the public has the right to "reasonably contemporaneous access to civil complaints." Schaefer 2 F.4th at 328.

    In effect, Plaintiff argues that Defendants are limiting an already established fundamental right, the right to access civil court records, in an unconstitutional manner by giving one group, Virginia lawyers, remote access while denying it to others. Strict scrutiny ordinarily applies to an alleged violation of the First Amendment. Schaefer, 2 F.4th at 328; Globe Newspaper Co. v. Superior Ct. for Norfolk Cty., 457 U.S. 596, 606 (1982). But when a limitation on a right of access resembles a "time, place, and manner" restriction, the Court should apply more relaxed scrutiny. Schaefer, 2 F.4th at 328; Globe Newspaper, 457 U.S. at 607 n.17. The non-attorney access restriction challenged here does not stop CNS from accessing civil court records altogether but instead controls how and when it accesses them. Thus, it resembles a time, place, and manner restriction and relaxed scrutiny applies.

    In this case, relaxed scrutiny requires the limitation to be "content-neutral, narrowly tailored and necessary" to preserve a "significant governmental interest." Schaefer, 2 F.4th at 328 (first quotation) (quoting Courthouse News Serv. v. Planet, 947 F.3d 581, 585 (4th Cir. 2020)); see McCullen v. Coakley, 573 U.S. 464, 477 (2014) (second quotation) (describing relaxed scrutiny more generally). "A regulation is narrowly tailored under this standard if it "promotes a substantial government interest that would be achieved less effectively absent the regulation" and does not "burden substantially more speech than is necessary to further the government's legitimate interests." Ross v. Early, 746 F.3d 546, 552-53 (4th Cir. 2014) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1981)).

    At this stage, the Court assumes without deciding that the non-attorney access restriction is content neutral.

    Here, Plaintiff alleges that OCRA's non-attorney access restriction is not narrowly tailored to preserve any significant governmental interest. Defendants argue that limiting OCRA access to Virginia attorneys allows them to more easily police misuses of the confidential or private information contained therein. Yet, as alleged by Plaintiff, OCRA contains identical court records that are already available to the public at physical courthouses. (Id. 52.) Moreover, Plaintiff alleges that all users of OCRA also must sign "Subscriber Agreements" which could also be used by Defendants to police misuse of OCRA. (A* H 44.)

    These allegations could lead to the reasonable inference that the non-attorney access restriction is not narrowly tailored to preserve a significant governmental interest and thus, could violate the First Amendment. See Tobey, 706 F.3d at 386. Of course, allegations are only allegations. Through discovery, the parties may be able to solidify the contours of the government's interests in enforcing the non-attorney access restriction and the burdens placed on the public. See Ross, 146 F.3d at 552-53. But on a Motion to Dismiss under Rule 12(b)(6), the Court must accept all of Plaintiff s allegations as true. Nemet Chevrolet, Ltd., 591 F.3d at 250. For these reasons, the Court will deny Defendants' Motions to Dismiss Count One of the Amended Complaint.

    In Count Two, Plaintiff alleges that Defendants' enforcement of OCRA's dissemination restriction, Va. Code § 17.1-293(H), violates the First Amendment. Defendants' only argument for dismissing Count Two is premised on the Court finding that Count One does not state a claim. Because the Court finds that Count One does state a claim, Count Two similarly survives. The Court will deny Defendants' Motion to Dismiss Count Two of the Amended Complaint.

    Lastly, in Count Three, Plaintiff alleges that Defendants discriminated against it by enforcing OCRA's non-attorney access restriction in violation of the Equal Protection Clause of the Fourteenth Amendment. To allege a violation of the Equal Protection Clause, a plaintiff must demonstrate "that he was treated differently from others who were similarly situated and that the unequal treatment was the result of discriminatory animus." Equity in Athletics, Inc. v. Dep 7 of Educ, 639 F.3d 91, 108 (4th Cir. 2011). The parties do not dispute that CNS and Virginia attorneys are similarly situated. The Amended Complaint also sufficiently alleges Defendants' discriminatory animus because the statute at issue explicitly limits OCRA access to Virginia attorneys. Morrison v. Garraghty, 239 F.3d 648, 657 (2001) (finding discriminatory animus where prison policy overtly treats Native-Americans differently).

    After a plaintiff proves he was intentionally discriminated against, the court must apply the appropriate level of scrutiny. Id. at 654. Strict scrutiny applies when a fundamental right or suspect class is involved. Id. Non-attorneys are not a suspect class. Id. (listing race, alienage, or national origin as suspect classifications); Equity in Athletics, 639 F.3d at 104 (listing sex as a suspect classification). Moreover, as noted above, Plaintiff does not argue that there is any fundamental right to access civil court records remotely. Thus, strict scrutiny does not apply, and Defendants need only show that their discrimination is "rationally related to a legitimate state interest." Id.; City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985).

    Under rational basis review, the restriction "must be afforded 'a strong presumption of validity,' and 'those attacking the rationality of the [statute] have the burden to negative every conceivable basis which might support it." Int 7 Refugee Assistance Project v. Trump, 961 F.3d 635, 651 (4th Cir. 2020) (emphasis in original) (quoting F.CC v. Beach Commc'ns, Inc., 508 U.S. 307, 314-15 (1993)). The Court "hardly ever strikes down a policy as illegitimate under rational basis review." Trump v. Hawaii, 138 S.Ct. 2392, 2420 (2018); Refugee Assistance Project, 961 F.3d at 651 (applying the same language at the motion to dismiss stage).

    Here, Defendants point to at least one legitimate interest of the government: protecting confidential and private information contained in the civil court records. While Plaintiff adequately alleges that this interest may not be "significant" and "narrowly tailored" under a First Amendment framework, McCullen, 573 U.S. at 477, the Amended Complaint does not contain any factual allegations that the government's interest is implausible or lacks all rationality. See City of Cleburne, 413 U.S. at 448. It is, at a minimum, rational to believe that limiting OCRA access to attorneys would protect confidential and private information because attorneys are more easily regulated by the court system. Thus, the Court finds that Count Three does not state a claim for which relief may be granted under the Equal Protection Clause. The Court will grant Defendants' Motions to Dismiss as to Count Three.

    IV. CONCLUSION

    The Court finds that Plaintiffs Amended Complaint adequately alleges that Defendant Hade was empowered to enforce the statutes at issue and, therefore, Defendant Hade does not enjoy sovereign immunity. Thus, the Court will deny Defendant Hade's Motion to Dismiss. (ECF No. 22.) Further, the Court finds that the Amended Complaint sufficiently states a claim for relief in Counts One and Two but fails to state a claim for relief in Count Three. Accordingly, the Court will grant Defendants' Motions to Dismiss (ECF Nos. 24, 26) as to Count Three but deny the Motions as to Counts One and Two. An appropriate Order will accompany this Memorandum Opinion.

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    Document Links 1 (Scribd et. al)

    https://www.courthousenews.com/wp-content/uploads/2021/11/cns-hade-virginia-memo.pdf

    Date
    March 1, 2021
    Type of Case
    First Amendment Freedom of Speech,
    The Court the Case was filed in

    United States District Court of the Eastern Division of Virginia (Alexandria)

    County/City:
    Alexandria, VA
    Plaintiff

    COURTHOUSE NEWS SERVICE,

    Comments

    PRELIMINARY STATEMENT
    This case is about the discriminatory treatment of the general public and press, including
    CNS, with respect to access to new civil filings. In violation of the First and Fourteenth
    Amendments, Defendants restrict remote electronic access to Virginia-barred attorneys, their staff,
    and officers of the court, precluding the press and the public from accessing new civil filings
    remotely.
    For decades, members of the press could review and obtain copies of non-confidential,
    newly filed civil complaints at the counter in clerks’ offices throughout Virginia, including at the
    Prince William Circuit Court. They could then follow the newsworthy cases and research similar
    filings through the court clerks’ records room. This enabled journalists to inform interested
    members of the public about new civil actions in a contemporaneous manner, while those cases

    were still newsworthy and likely to be the subject of public attention and discussion. It also
    allowed them to write more informative stories about ongoing controversies based on the court
    record. As technology advanced, public access computer terminals were placed in the clerks’
    offices for anyone to use to view and print copies of non-confidential, public court filings. As part
    of the technological advances, OES created, and now maintains, manages, and administers, the
    Officers of the Court Remote Access system (“OCRA”), which provides for remote access through
    the Internet to the same non-confidential, public court filings available on the public access
    terminals in the clerks’ offices.
    Unlike nearly all federal district courts, including this Court, and a growing number of state
    courts across the country, that provide the press and public with remote access to newly filed civil
    complaints and other civil filings via court websites – enabling journalists to cover more courts in
    the era of digital news coverage where there is a 24/7 news cycle – OCRA is only offered to a
    special subclass of individuals: Virginia-barred attorneys, their staff, and officers of the court.
    Others, including CNS, are prohibited from utilizing OCRA for remote access.
    The effect is that the practical ability of the press to report on new cases filed statewide and
    to follow events in those cases on a daily basis is impaired. It is simply not possible for a news
    service, such as CNS, to send reporters on a daily basis, if at all, to the 120 courts throughout the
    Virginia circuit court system, approximately 90 of which utilize OCRA and cover an area of over
    30,000 square miles. This impediment to access undermines the benefit of public scrutiny and
    effectively results in suppression, all while one subclass of the public can review new filings
    remotely on a daily basis. This unequal and preferential treatment deprives CNS and others who
    are not licensed to practice law in Virginia from equal treatment and unconstitutionally infringes
    on the First Amendment right of access to non-confidential, public court records.

    The Fourth Circuit has made clear that the First Amendment “requires courts to make
    newly filed civil complaints available as expeditiously as possible.” Courthouse News Serv. v.
    Schaefer, 2 F.4th 318, 328 (4th Cir. 2021) (“Schaefer II”). Nonetheless, Defendants attempt to
    evade the First Amendment right of access by arguing there is no First Amendment right of remote
    access. This argument misses the mark. Case law is clear that when a First Amendment right of
    access applies, as here, Defendants must meet their burden of justifying any access restrictions.
    Instead of doing so, the Executive Secretary first argues that the Eleventh Amendment bars
    suit against him even though he has direct control over, and is responsible for, maintaining OCRA.
    Indeed, the Amended Complaint (“Complaint”) alleges that the Executive Secretary plays a central
    role in the challenged conduct, as well as CNS’ ability to obtain complete relief and, as such, he is
    not immune from suit. While Defendants also attempt to cloak their actions behind Virginia Code
    Section 17.1-293, which purports to prohibit remote access to confidential information, it is
    understood and alleged that the documents available on OCRA are not confidential; they are the
    same documents made available on the public access terminals at the courthouse. As such,
    Defendants’ actions are not dictated by the language of Section 17.1-293. To the extent Section
    17.1-293 can be interpreted to compel Defendants to restrict remote access or the dissemination of
    public information gathered remotely, the requirements of the First Amendment override the
    statute.
    Defendants can provide remote access – and, in fact do provide such access to all cases to
    Virginia-barred attorneys, their staff, and officers of the court (not just the cases they are involved
    in) – but, as the Amended Complaint alleges, Defendants have intentionally declined to do so for
    CNS, restricting remote access for newsgathering purposes and prohibiting dissemination to the
    general public. By doing so, Defendants discriminate against the media through disfavored treatment and impose restraints on protected speech. These restrictions infringe CNS’ First
    Amendment rights to gather and disseminate newsworthy information to which a constitutional
    right of access exists.

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    • John G. Roberts, Jr., Chief Justice of the United States, ... Clarence Thomas, Associate Justice, ... Samuel A. Alito, Jr., Associate Justice, ... Sonia Sotomayor, Associate Justice, ... Elena Kagan, Associate Justice, ... Neil M. Gorsuch, Associate Justice, ... Brett M. Kavanaugh, Associate Justice, John G. Roberts, Chief Justice of the United States John G. Roberts, Jr., Chief Justice of the United States, was born in Buffalo, New York, January 27, 1955. He married Jane Sullivan in 1996 and they have two children - Josephine and Jack. He received an A.B. from Harvard College in 1976 and a J.D. from Harvard Law School in 1979. He served as a law clerk for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit from 1979–1980, and as a law clerk for then-Associate Justice William H. Rehnquist of the Supreme Court of the United States during the 1980 Term. He served as a Special Assistant to the Attorney General of the United States from 1981–1982, Associate Counsel to President Ronald Reagan, White House Counsel’s Office from 1982–1986, and as Principal Deputy Solicitor General from 1989–1993. From 1986–1989 and 1993–2003, he practiced law in Washington, D.C. He served as a Judge on the Court of Appeals for the District of Columbia Circuit from 2003–2005. Nominated as Chief Justice of the United States by President George W. Bush, he assumed that office on September 29, 2005. Clarence Thomas, Associate Justice Clarence Thomas, Associate Justice, was born in the Pinpoint community near Savannah, Georgia on June 23, 1948. He attended Conception Seminary from 1967-1968 and received an A.B., cum laude, from College of the Holy Cross in 1971 and a J.D. from Yale Law School in 1974. He was admitted to law practice in Missouri in 1974, and served as an Assistant Attorney General of Missouri, 1974-1977; an attorney with the Monsanto Company, 1977-1979; and Legislative Assistant to Senator John Danforth, 1979-1981. From 1981–1982 he served as Assistant Secretary for Civil Rights, U.S. Department of Education, and as Chairman of the U.S. Equal Employment Opportunity Commission, 1982-1990. From 1990–1991, he served as a Judge on the United States Court of Appeals for the District of Columbia Circuit. President Bush nominated him as an Associate Justice of the Supreme Court and he took his seat October 23, 1991. He married Virginia Lamp on May 30, 1987 and has one child, Jamal Adeen by a previous marriage. Samuel A. Alito, Jr., Associate Justice Samuel A. Alito, Jr., Associate Justice, was born in Trenton, New Jersey, on April 1, 1950. He married Martha-Ann Bomgardner in 1985, and has two children - Philip and Laura. He served as a law clerk for Leonard I. Garth of the United States Court of Appeals for the Third Circuit from 1976–1977. He served as an Assistant U.S. Attorney, District of New Jersey, 1977–1981, as Assistant to the Solicitor General, U.S. Department of Justice, 1981–1985, as Deputy Assistant Attorney General, U.S. Department of Justice, 1985–1987, and as U.S. Attorney, District of New Jersey, 1987–1990. He was appointed to the United States Court of Appeals for the Third Circuit in 1990. President George W. Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat January 31, 2006. Sonia Sotomayor, Associate Justice Sonia Sotomayor, Associate Justice, was born in Bronx, New York, on June 25, 1954. She earned a B.A. in 1976 from Princeton University, graduating summa cum laude and a member of Phi Beta Kappa and receiving the Pyne Prize, the highest academic honor Princeton awards to an undergraduate. In 1979, she earned a J.D. from Yale Law School where she served as an editor of the Yale Law Journal. She served as Assistant District Attorney in the New York County District Attorney’s Office from 1979–1984. She then litigated international commercial matters in New York City at Pavia & Harcourt, where she served as an associate and then partner from 1984–1992. In 1991, President George H.W. Bush nominated her to the U.S. District Court, Southern District of New York, and she served in that role from 1992–1998. In 1997, she was nominated by President Bill Clinton to the U.S. Court of Appeals for the Second Circuit where she served from 1998–2009. President Barack Obama nominated her as an Associate Justice of the Supreme Court on May 26, 2009, and she assumed this role August 8, 2009. Elena Kagan, Associate Justice Elena Kagan, Associate Justice, was born in New York, New York, on April 28, 1960. She received an A.B. from Princeton in 1981, an M. Phil. from Oxford in 1983, and a J.D. from Harvard Law School in 1986. She clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit from 1986-1987 and for Justice Thurgood Marshall of the U.S. Supreme Court during the 1987 Term. After briefly practicing law at a Washington, D.C. law firm, she became a law professor, first at the University of Chicago Law School and later at Harvard Law School. She also served for four years in the Clinton Administration, as Associate Counsel to the President and then as Deputy Assistant to the President for Domestic Policy. Between 2003 and 2009, she served as the Dean of Harvard Law School. In 2009, President Obama nominated her as the Solicitor General of the United States. A year later, the President nominated her as an Associate Justice of the Supreme Court on May 10, 2010. She took her seat on August 7, 2010. Neil M. Gorsuch, Associate Justice Neil M. Gorsuch, Associate Justice, was born in Denver, Colorado, August 29, 1967. He and his wife Louise have two daughters. He received a B.A. from Columbia University, a J.D. from Harvard Law School, and a D.Phil. from Oxford University. He served as a law clerk to Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit, and as a law clerk to Justice Byron White and Justice Anthony M. Kennedy of the Supreme Court of the United States. From 1995–2005, he was in private practice, and from 2005–2006 he was Principal Deputy Associate Attorney General at the U.S. Department of Justice. He was appointed to the United States Court of Appeals for the Tenth Circuit in 2006. He served on the Standing Committee on Rules for Practice and Procedure of the U.S. Judicial Conference, and as chairman of the Advisory Committee on Rules of Appellate Procedure. He taught at the University of Colorado Law School. President Donald J. Trump nominated him as an Associate Justice of the Supreme Court, and he took his seat on April 10, 2017. Brett M. Kavanaugh, Associate Justice Brett M. Kavanaugh, Associate Justice, was born in Washington, D.C., on February 12, 1965. He married Ashley Estes in 2004, and they have two daughters - Margaret and Liza. He received a B.A. from Yale College in 1987 and a J.D. from Yale Law School in 1990. He served as a law clerk for Judge Walter Stapleton of the U.S. Court of Appeals for the Third Circuit from 1990-1991, for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit from 1991-1992, and for Justice Anthony M. Kennedy of the U.S. Supreme Court during the 1993 Term. In 1992-1993, he was an attorney in the Office of the Solicitor General of the United States. From 1994 to 1997 and for a period in 1998, he was Associate Counsel in the Office of Independent Counsel. He was a partner at a Washington, D.C., law firm from 1997 to 1998 and again from 1999 to 2001. From 2001 to 2003, he was Associate Counsel and then Senior Associate Counsel to President George W. Bush. From 2003 to 2006, he was Assistant to the President and Staff Secretary for President Bush. He was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 2006. President Donald J. Trump nominated him as an Associate Justice of the Supreme Court, and he took his seat on October 6, 2018. Amy Coney Barrett, Associate Justice Amy Coney Barrett, Associate Justice, was born in New Orleans, Louisiana, on January 28, 1972. She married Jesse M. Barrett in 1999, and they have seven children - Emma, Vivian, Tess, John Peter, Liam, Juliet, and Benjamin. She received a B.A. from Rhodes College in 1994 and a J.D. from Notre Dame Law School in 1997. She served as a law clerk for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit from 1997 to 1998, and for Justice Antonin Scalia of the Supreme Court of the United States during the 1998 Term. After two years in private law practice in Washington, D.C., she became a law professor, joining the faculty of Notre Dame Law School in 2002. She was appointed a Judge of the United States Court of Appeals for the Seventh Circuit in 2017. President Donald J. Trump nominated her as an Associate Justice of the Supreme Court, and she took her seat on October 27, 2020. Ketanji Brown Jackson, Associate Justice Ketanji Brown Jackson, Associate Justice, was born in Washington, D.C., on September 14, 1970. She married Patrick Jackson in 1996, and they have two daughters. She received an A.B., magna cum laude, from Harvard-Radcliffe College in 1992, and a J.D., cum laude, from Harvard Law School in 1996. She served as a law clerk for Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts from 1996 to 1997, Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit from 1997 to 1998, and Justice Stephen G. Breyer of the Supreme Court of the United States during the 1999 Term. After three years in private practice, she worked as an attorney at the U.S. Sentencing Commission from 2003 to 2005. From 2005 to 2007, she served as an assistant federal public defender in Washington, D.C., and from 2007 to 2010, she was in private practice. She served as a Vice Chair and Commissioner on the U.S. Sentencing Commission from 2010 to 2014. In 2012, President Barack Obama nominated her to the U.S. District Court for the District of Columbia, where she served from 2013 to 2021. She was appointed to the Defender Services Committee of the Judicial Conference of the United States in 2017, and the Supreme Court Fellows Commission in 2019. President Joseph R. Biden, Jr., appointed her to the United States Court of Appeals for the District of Columbia Circuit in 2021 and then nominated her as an Associate Justice of the Supreme Court in 2022. She took her seat on June 30, 2022. Anthony M. Kennedy, Associate Justice Anthony M. Kennedy (Retired), Associate Justice, was born in Sacramento, California, July 23, 1936. He married Mary Davis and has three children. He received his B.A. from Stanford University and the London School of Economics, and his LL.B. from Harvard Law School. He was in private practice in San Francisco, California from 1961–1963, as well as in Sacramento, California from 1963–1975. From 1965 to 1988, he was a Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific. He has served in numerous positions during his career, including a member of the California Army National Guard in 1961, the board of the Federal Judicial Center from 1987–1988, and two committees of the Judicial Conference of the United States: the Advisory Panel on Financial Disclosure Reports and Judicial Activities, subsequently renamed the Advisory Committee on Codes of Conduct, from 1979–1987, and the Committee on Pacific Territories from 1979–1990, which he chaired from 1982–1990. He was appointed to the United States Court of Appeals for the Ninth Circuit in 1975. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat February 18, 1988. Justice Kennedy retired from the Supreme Court on July 31, 2018. David Hackett Souter, Associate Justice David H. Souter (Retired), Associate Justice, was born in Melrose, Massachusetts, September 17, 1939. He graduated from Harvard College, from which he received his A.B. After two years as a Rhodes Scholar at Magdalen College, Oxford, he received an A.B. in Jurisprudence from Oxford University and an M.A. in 1963. After receiving an LL.B. from Harvard Law School, he was an associate at Orr and Reno in Concord, New Hampshire from 1966 to 1968, when he became an Assistant Attorney General of New Hampshire. In 1971, he became Deputy Attorney General and in 1976, Attorney General of New Hampshire. In 1978, he was named an Associate Justice of the Superior Court of New Hampshire, and was appointed to the Supreme Court of New Hampshire as an Associate Justice in 1983. He became a Judge of the United States Court of Appeals for the First Circuit on May 25, 1990. President Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat October 9, 1990. Justice Souter retired from the Supreme Court on June 29, 2009. Stephen G. Breyer, Associate Justice Stephen G. Breyer (Retired), Associate Justice, was born in San Francisco, California, August 15, 1938. He married Joanna Hare in 1967, and has three children - Chloe, Nell, and Michael. He received an A.B. from Stanford University, a B.A. from Magdalen College, Oxford, and an LL.B. from Harvard Law School. He served as a law clerk to Justice Arthur Goldberg of the Supreme Court of the United States during the 1964 Term, as a Special Assistant to the Assistant U.S. Attorney General for Antitrust, 1965–1967, as an Assistant Special Prosecutor of the Watergate Special Prosecution Force, 1973, as Special Counsel of the U.S. Senate Judiciary Committee, 1974–1975, and as Chief Counsel of the committee, 1979–1980. He was an Assistant Professor, Professor of Law, and Lecturer at Harvard Law School, 1967–1994, a Professor at the Harvard University Kennedy School of Government, 1977–1980, and a Visiting Professor at the College of Law, Sydney, Australia and at the University of Rome. From 1980–1990, he served as a Judge of the United States Court of Appeals for the First Circuit, and as its Chief Judge, 1990–1994. He also served as a member of the Judicial Conference of the United States, 1990–1994, and of the United States Sentencing Commission, 1985–1989. President Clinton nominated him as an Associate Justice of the Supreme Court, and he took his seat August 3, 1994. Justice Breyer retired from the Supreme Court on June 30, 2022
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