In January 2022, the United States District Court for the Eastern District of Virginia denied an effort to dismiss the civil lawsuit Courthouse News Service v. Hade (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 – filed the lawsuit in July 2021 and named as the 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 a fee instant electronic access to new court records while members of the public were limited to in-person requests.
In Virginia circuit courts, clerks provide the public with access to the court records at the physical courthouse, but 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. In an effort to save money and travel time, CNS asked many circuit court clerks for access to OCRA even though its staff members were 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.
The defendants argued in their motions to dismiss that the plaintiff CNS failed to state a claim upon which relief may be granted, while Defendant Hade also argued that he enjoyed sovereign immunity and that the District Court did not have subject matter jurisdiction over him, according to the opinion.
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 officers “acted or threatened” to enforce the statute.
“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,” the opinion stated.
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