2022Criminal Records

Written By ESR News Blog Editor Thomas Ahearn

On January 14, 2022, the United States District Court for the Eastern District of Virginia, Richmond Division, denied an effort to dismiss the civil lawsuit Courthouse News Service v. Hade, et al. (No. 3:21-cv-00460) that was challenging the restrictions placed on public access to electronic court records in the state of Virginia.

Courthouse News Service (CNS) – a nationwide news service for lawyers and the news media that focuses on reporting about civil litigation – filed the lawsuit in July of 2021 and named as defendants the executive secretary of the Supreme Court of Virginia and a clerk for the Circuit Court of Prince William County, Virginia.

The lawsuit claimed Virginia courts violated the First Amendment of the U.S. Constitution and Equal Protection Clause of the Fourteenth Amendment by giving Virginia attorneys who paid an annual fee instant electronic access to new court records while members of the public were limited to in-person requests at courthouses.

In all Virginia circuit courts, clerks provide the public with access to the court records at the physical courthouse. Beyond access at the courthouse, some circuit courts provide access to civil court records remotely via the internet on a system called the “Virginia Officer of the Court Remote Access (OCRA),” according to the opinion.

CNS reporters usually traveled to Virginia circuit courts to access the civil court records provided in physical courthouses. 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. Every circuit court clerk denied CNS access to OCRA.

CNS claimed enforcement of OCRA’s non-attorney access restriction and dissemination restriction by the defendants violated the First Amendment and that the defendants discriminated against CNS by enforcing OCRA’s non-attorney access restriction in violation of the Equal Protection Clause of the Fourteenth Amendment.

The defendants argued in their motions to dismiss that plaintiff CNS failed to state a claim upon which relief may be granted. Defendant Hade also argued that he enjoyed sovereign immunity and that the District Court did not have subject matter jurisdiction over him. The Court heard oral arguments on the issues on January 10, 2022.

The Court found “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” and the officer has “acted or threatened” to enforce the statute, the opinion stated.

“The Court finds that Plaintiff’s 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,” Senior District Judge Henry E. Hudson concluded in the opinion.

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