Courthouse News Service v. Joan Gilmer ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2632
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Courthouse News Service
Plaintiff - Appellant
v.
Joan M. Gilmer, in her official capacity as the Clerk of the Circuit Court of St.
Louis County, Missouri; Kathy Lloyd, in her official capacity as State Courts
Administrator for the Missouri Office of State Courts Administrator
Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 14, 2022
Filed: September 19, 2022
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Before SHEPHERD, ERICKSON, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
This case presents two questions. First, does sovereign immunity protect
state-court officials who run an e-filing system that delays public access to newly
filed civil petitions? Second, should federal courts abstain from hearing this type of
case anyway? We conclude that the answer to both questions is no, so we reverse
and remand for further proceedings.
I.
Courthouse News is a national “news service that reports on civil litigation in
state and federal courts throughout the country.” Courthouse News Serv. v. Schaefer,
2 F.4th 318, 322 (4th Cir. 2021). For years, it has published staff-written summaries
on newly filed complaints (called “petitions” in Missouri). In St. Louis County,
access used to be easy. Reporters could go to a bin at the intake counter in the clerk’s
office and review them.
When Missouri switched to an e-filing system, same-day access became the
exception, not the rule. Newly filed petitions remain unavailable until court staff
processes them, which can sometimes take “a week or more.” According to
Courthouse News, only five percent of petitions are now available on the day of
filing.
Courthouse News wants same-day access again. It made its views known in
a letter to Joan Gilmer, the Circuit Clerk for St. Louis County, and Kathy Lloyd, the
Missouri State Courts Administrator. But Lloyd denied the request because the new
system does not have “the ability . . . to give access to new cases filed prior to clerk
acceptance.”
Now Courthouse News has sued them both in federal court. It alleges in its
complaint that the delays violate the First Amendment. See Flynt v. Lombardi, 885
F.3d 508, 512 (8th Cir. 2018) (discussing the First Amendment right-of-public-
access theory). And it seeks declaratory and injunctive relief to remedy the injury.
In their motion to dismiss, Gilmer and Lloyd asked the district court to either
abstain under Younger v. Harris, 401 U.S. 37 (1971), or rule that Courthouse News’s
complaint failed to state a First Amendment claim. The district court decided to
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abstain and never ruled on the merits. Our focus is the same, except Gilmer and
Lloyd have raised one new jurisdictional issue that we have to address first:
sovereign immunity. See Edelman v. Jordan, 415 U.S. 651, 677–78 (1975)
(explaining that appellate courts must decide whether state sovereign immunity
exists even if the argument was never “raised in the trial court”).
II.
Under the doctrine of sovereign immunity, “[s]tates are immune from suit.”
Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 532 (2021). One “narrow
exception,” however, is “grounded in traditional equity practice”: “preventing state
executive officials from enforcing state laws that are contrary to federal law.” Id.(discussing the Ex parte Young exception). It “rests on the premise—less delicately
called a ‘fiction’—that when a federal court commands a state official to do nothing
more than refrain from violating federal law,” the state is no longer the real “party
in interest.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011)
(citations omitted). “In determining whether the doctrine of Ex parte Young avoids
an Eleventh Amendment bar to suit, a court need only conduct a straightforward
inquiry into whether the complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.” Id. (brackets and quotation
marks omitted).
Analyzing the issue de novo, see Fryberger v. Univ. of Ark., 889 F.3d 471,
473 (8th Cir. 2018), we conclude this case checks all the Ex parte Young boxes.
Courthouse News alleges that the delays give rise to ongoing violations of the First
Amendment.1 And it seeks only prospective relief, not damages: declaratory and
1
Although there is reason to believe that the First Amendment may require
access to court-filed documents, there is reason to doubt that it must be lightning
fast. Cf. IDT Corp. v. eBay, 709 F.3d 1220, 1224–25 (8th Cir. 2013) (“Whatever the
evolution of the federal common-law right of access, APLC has not established a
strong historical tradition of public access to complaints in civil cases that are settled
without adjudication on the merits.”); In re Reps. Comm. for Freedom of the Press,
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injunctive relief from two state officials who have a “connection” to the e-filing
system. Reprod. Health Servs. of Planned Parenthood of the St. Louis Region, Inc.
v. Nixon, 428 F.3d 1139, 1145 (8th Cir. 2005); see also Mahn v. Jefferson Cnty., 891
F.3d 1093, 1099 (8th Cir. 2018) (concluding that Ex parte Young permitted an
official-capacity suit against a Missouri state-court clerk by an ex-employee seeking
reinstatement).
There is one wrinkle, though. Neither Gilmer nor Lloyd is an executive
official. See Jackson, 142 S. Ct. at 532. Rather, under Missouri law, the offices they
hold lie squarely within the judicial branch. 2 And Ex parte Young suggests a special
rule applies to courts. 209 U.S. 123, 163 (1908). It states, for example, that “the
right to enjoin . . . a state official . . . does not include the power to restrain a court
from acting in any case brought before it” and that “an injunction against a state
court would be a violation of the whole scheme of our [g]overnment.” Id.773 F.2d 1325, 1333–36 (D.C. Cir. 1985) (Scalia, J.) (suggesting that the right to
public access to judicial records “is not absolute,” especially in “private civil
actions”). But see Courthouse News Serv. v. Planet, 947 F.3d 581, 600 (9th Cir.
2020) (“The First Amendment secures a right of timely access to publicly available
civil complaints that arises before any judicial action upon them.”). Still, we decline
to decide the merits here for two reasons. First, the district court never reached them.
See Alexis Bailly Vineyard, Inc. v. Harrington, 931 F.3d 774, 780 (8th Cir. 2019)
(remanding on a constitutional issue the district court never decided). And second,
Courthouse News has not briefed them. See CRST Expedited, Inc. v. TransAm
Trucking, Inc., 960 F.3d 499, 508 (8th Cir. 2020) (declining to reach an issue that
the parties did not brief); Henley v. Brown, 686 F.3d 634, 643–44 (8th Cir. 2012)
(same).
2
The office of circuit clerk was created by state statute, Mo. Rev. Stat.
§ 483.015.2–.3, and the circuit and associate circuit judges in St. Louis County
appointed Gilmer, St. Louis Cnty. Charter art. IV, § 4.430. The office of “state
courts administrator” is provided for in article V, § 4 of the Missouri Constitution
and discussed in Supreme Court Rule 82.03, which states that she is in charge of
“the administrative methods and systems adopted by th[e] [Missouri Supreme] Court
for use in the office of the clerks and the various state and municipal courts.”
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Those same statements came into play nearly a century later in Jackson. The
question there was whether a federal court could enjoin state-court clerks from
docketing abortion cases under Texas’s Heartbeat Abortion Ban. 142 S. Ct. at 532.
In answering no, the Supreme Court made clear that Ex parte Young’s no-injunctions
rule extended to other state-court officials too. See id. Gilmer and Lloyd’s position
is that the same goes for them.
The problem is that Ex parte Young had a particular type of injunction in mind:
one that would “restrain a [state] court from acting” or from “exercis[ing]
jurisdiction” in a case. 209 U.S. at 163. The injunction here, even if Courthouse
News is ultimately successful, will not prevent any Missouri court from “acting” or
“exercis[ing] jurisdiction” in any case. Id. All it will do is require Gilmer to release
newly filed petitions earlier than she might otherwise have. That is not the type of
relief that will upset “the whole scheme of . . . [g]overnment.” Id.Nothing in Jackson is to the contrary. In describing how the Ex parte Young
exception works in cases seeking relief against a state-court official, the Supreme
Court used important qualifiers. Far from laying out an absolute rule, the Court said
that it “does not normally permit federal courts to issue injunctions against state-
court judges or clerks” because “[u]sually, those individuals do not enforce state
laws as executive officials might; instead, they work to resolve disputes between
parties.” Jackson, 142 S. Ct. at 532 (emphases added). The rule, in other words, has
not changed over the last century: state sovereign immunity shields state-court
judges and clerks from prospective relief that will interfere with their ability to “act[]
in any case.” Ex parte Young, 209 U.S. at 163. And a lawsuit aimed at preventing
state-court clerks from docketing abortion cases is a case in point. Jackson, 142 S.
Ct. at 532.
This case, by contrast, is more like a classic Ex parte Young suit brought
against an executive official. Courthouse News is asking a federal court to order
Gilmer and Lloyd to carry out their “administrative dut[ies]” differently. Kodiak Oil
& Gas (USA) Inc. v. Burr, 932 F.3d 1125, 1131–32 (8th Cir. 2019) (stating that
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“clerk[s] of court” who engage in “supervisory and administrative duties” are subject
to suit under Ex parte Young). So this lawsuit is about “enjoin[ing] named
defendants from taking specified unlawful actions,” Jackson, 142 S. Ct. at 535, not
“enjoin[ing] courts from proceeding in their own way to exercise jurisdiction,” Ex
parte Young, 209 U.S. at 163.
Looking deeper into Jackson’s reasoning reveals two other meaningful
differences. First, the “traditional remedy” if a “state court errs” is “some form of
appeal . . . not the entry of an ex ante injunction preventing the state court from
hearing cases.” Jackson, 142 S. Ct. at 532. Missouri’s implementation of its e-filing
system is not the type of decision that gets appealed, at least not in the usual way.
Second, the adversity between the parties that was missing in Jackson is
present here. Id. (“Clerks serve to file cases as they arrive, not to participate as
adversaries in those disputes.”). Courthouse News complains about delays in the e-
filing system, not the merits of any underlying lawsuit. On that point, Courthouse
News is adverse to Gilmer and Lloyd: Courthouse News wants them to make newly
filed petitions available more quickly and they just want to follow existing
procedures, which involve making petitions available once court staff has processed
them.
We understand that this lawsuit toes a fine line between directly interfering
with state-court operations and potentially vindicating a litigant’s constitutional
rights. It also places the district court in the uncomfortable position of conceivably
telling Missouri courts how to implement their own e-filing system. Although we
are “wary of approving new encroachments on sovereignty,” we conclude that,
whatever may stand in the way of Courthouse News’s lawsuit, sovereign immunity
is not it. Stewart, 563 U.S. at 258 (explaining that “not every offense to the dignity
of a [s]tate constitutes a denial of sovereign immunity”).
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III.
Gilmer and Lloyd have another idea: abstention. “[W]here the relief being
sought is equitable in nature or otherwise discretionary,” federal courts can stay an
action, dismiss it, or remand to state court “based on abstention principles.”
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 721 (1996). Even though the district
court acknowledged that Younger abstention is not a “perfect fit[],” it decided to
abstain anyway. See Younger v. Harris, 401 U.S. 37 (1971). We review this
decision for an abuse of discretion, subject to the caveat that any underlying legal
issues, including whether Younger applies, receive plenary review. See Cedar
Rapids Cellular Tel., L.P. v. Miller, 280 F.3d 874, 878 (8th Cir. 2002). The same
goes for any decision to grant or deny equitable relief. See Gumbhir v. Curators of
the Univ. of Mo., 157 F.3d 1141, 1144 (8th Cir. 1998).
A.
Federal courts have a “virtually unflagging” obligation to hear and decide
cases within their jurisdiction. Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77
(2013). As Chief Justice Marshall colorfully put it, to “decline the exercise of
jurisdiction” is tantamount to “treason to the [C]onstitution.” Cohens v. Virginia, 19
U.S. (6 Wheat.) 264, 404 (1821).
Over time, however, the Supreme Court has recognized exceptions to what
was once a rigid rule. Among them are various abstention doctrines, including what
we now call Younger abstention. As the Supreme Court describes it, Younger
“espouse[d] a strong federal policy against federal-court interference with pending
state judicial proceedings absent extraordinary circumstances.” Middlesex Cnty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982).
Younger comes with important limits. One is that it applies only when there
is a “parallel, pending state . . . proceeding[].” See Sprint Commc’ns, 571 U.S. at
72. The second is that only three types of state “parallel” proceedings count: “(1) a
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criminal prosecution, (2) a civil enforcement proceeding that is akin to a criminal
prosecution, [and] (3) a proceeding implicating a state’s interest in enforcing the
orders and judgments of its courts.” Minn. Living Assistance, Inc. v. Peterson, 899
F.3d 548, 552 (8th Cir. 2018). Only then are the “exceptional circumstances”
justifying Younger abstention potentially present. See Sprint Commc’ns, 571 U.S.
at 82 (“Younger extends to the[se] three ‘exceptional circumstances’ . . . but no
further” (emphasis added)); see also Peterson, 899 F.3d at 552 (discussing the other
requirements of Younger abstention).
Gilmer and Lloyd cannot point to any “parallel, pending state . . .
proceeding,” much less one that falls within one of Younger’s three categories.
Sprint Commc’ns, 571 U.S. at 72, 82. Nor does this case resemble the classic
Younger situation: a litigant runs to federal court to cut off an impending or actual
state-court proceeding that is unlikely to go well. See, e.g., Younger, 401 U.S. at38–39 (involving a federal suit seeking to enjoin the city attorney from bringing a
state-level prosecution); Hicks v. Miranda, 422 U.S. 332, 334–38 (1975) (suing in
federal court to block a state obscenity prosecution); Huffman v. Pursue, Ltd., 420
U.S. 592, 598 (1975) (attempting to get declaratory relief in federal court after losing
a nuisance suit in state court). Here, all we have is a dispute about who gets to see
newly filed petitions and when, and neither is the subject of any pending state-court
proceeding.
B.
Yet, according to Gilmer and Lloyd, even the mere threat of interference with
state proceedings is enough. They point to O’Shea v. Littleton, which addressed
whether a federal court could step in to prevent racial discrimination in bond-setting,
sentencing, and jury procedures in a municipal-court system. 414 U.S. 488, 491–92
(1974). After holding that the controversy was not yet ripe, the Supreme Court went
on to suggest it may well have ruled the same way under Younger. Id. at 500. In its
view, the case presented the type of “ongoing federal audit of state criminal
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proceedings which would indirectly accomplish the kind of interference that
Younger v. Harris and related cases sought to prevent.” Id. (citation omitted).
Even reading this line from O’Shea for all it is worth does not bring this case
within Younger’s domain. The requested remedy there was “aimed at controlling or
preventing the occurrence of specific events that might take place in the course of
future state criminal trials,” meaning that it “contemplate[d] interruption of state
proceedings to adjudicate assertions of noncompliance by petitioners.” Id. Here, by
contrast, there is no risk that a decision in Courthouse News’s favor would interrupt
any state-court proceeding, despite the significant administrative burden it might
place on court staff.
Even though abstention does not apply, these cases still suggest that there are
limits to the type of equitable relief available. As the Supreme Court explained in
Rizzo v. Goode, “appropriate consideration must be given to principles of federalism
in determining the availability and scope of injunctive relief.” 423 U.S. 362, 379
(1976) (emphasis added). Gilmer and Lloyd underscore this point in their brief.
Rizzo involved a broad structural injunction that required various city officials
“to submit to [the district court] for its approval a comprehensive program for
improving the handling of citizen complaints alleging police misconduct.” Id. at
365. The dispute arose out of a history of racially motivated police brutality, and
the district court issued an order that would have allowed it to “supervise the
functioning of the police department.” Id. at 365, 373, 380. The Supreme Court
concluded that the district court had exceeded its authority because the injunction
was an “unwarranted intrusion . . . into the discretionary authority committed to [city
officials] by state and local law.” Id. at 366; see also Missouri v. Jenkins, 515 U.S.
70, 131 (1995) (Thomas, J., concurring) (explaining how overbroad injunctions can
override the “[s]tate’s discretionary authority over its own program[s] and budgets
and forc[e] state officials to reallocate state resources and funds . . . at the expense
of other citizens, other government programs, and other institutions not represented
in court”).
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Just like in Rizzo, there are “important considerations of federalism” that
“weigh[]” against an injunction here. 423 U.S. at 378. A consistent theme in all the
cases we have discussed is a concern about excessive interference by federal courts
in state-court business. If Courthouse News eventually prevails on its constitutional
claim, declaratory relief would mitigate this concern to some degree by giving
Missouri courts “the widest latitude in the ‘dispatch of [their] own internal affairs.’”
Id. at 378–79 (quoting Cafeteria & Rest. Workers Union, Local 473 v. McElroy, 367
U.S. 886, 896 (1961)). As long as there is continuing attention given to these
“delicate issues of federal-state relationships,” the case can move forward. Id. at 380
(quoting Mayor v. Educ. Equal. League, 415 U.S. 605, 615 (1974)).
IV.
We accordingly reverse the judgment of the district court and remand for
further proceedings.
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