Courthouse News Service v Karl R. Hade et al
Courthouse News Service v Karl R. Hade et al
United States District Court of the Eastern Division of Virginia (Alexandria)
Henry E. Hudson wrote a book called "The Quest of Justice" He brags how he lied to the entire Virginia Legislature - He is Corrupt
COURTHOUSE NEWS SERVICE,
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
Alternate Contact, Supreme Court of Virginia
(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.
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
Jonathan E. Ginsberg (admitted pro hac vice)
1290 Avenue of the Americas
New York, NY 10104
Telephone: (212) 541-2000
Facsimile: (212) 541-4630
Counsel for Plaintiff
Courthouse News Service
All Citizens of Virginia
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.
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.
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.
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.
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
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
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.