South Dakota advances First Amendment by giving public access to court inbox

In a court order Thursday, U.S. District Judge Lawrence Piersol kept jurisdiction over an action brought by Courthouse News while the South Dakota courts put in place a system that gives public access to new civil complaints — the grist of a trial court’s mill — when they cross into court.

“Defendants, through the South Dakota State Court Administrator’s Office, have agreed to implement an online portal to provide registered users with on-receipt access to new non-confidential civil complaints filed with all South Dakota circuit courts in all counties upon the complaints’ receipt by the South Dakota courts via the statewide e-filing system,” wrote Piersol.

He granted the joint request by this news service and the administrator of the South Dakota courts to stay the litigation. The stay lasts until July 2025 which is when the portal that allows on-receipt access will be completed.

The case brought by Courthouse News is part of an war to keep American courthouses open to the public in the face of efforts by public officials to cast the work of the courts into what access opponents call “practical obscurity.”

The courts of Minnesota next door have used public funds to fight against public access and are currently locking into a long legal battle, arguing that timely public access is a threat to privacy.

The solution adopted by South Dakota is both common and cautious. As Judge Piersol noted in his order, the portal being set up by the administrator allows “registered users” to review the new filings when they are fresh. Many state courts and almost all the federal courts require registration for remote access and, in many cases, payment of a small fee.

The registration system protects the court records from anonymous exploitation of information, while allowing those with a bonafide interest in the claims made in the new filings to report on the news.

Those claims run through the broad reach of the law, including allegations of environmental damage, fraud on the public, deceptive advertising and products that harm the public. Courts throughout the Midwest traditionally allowed the public to review the new cases coming into the courthouse as soon as they crossed the clerk’s counter.

For example, during a hearing in 2022, judges on the 8th Circuit — which has jurisdiction over lower courts in South Dakota and Minnesota — in essence testified to the tradition from the bench.

“There was a time when — and some in this room may remember it — when you took a pleading to the courthouse and the clerk stamped it physically and it went into different bins and it was available immediately,” said Judge Bobby Shepherd.

Judge Ralph Erickson pointed out that the tradition went back to a time beyond memory. “What we’re saying is that, oh, for about 230 years, you can walk into a courthouse, into the clerk’s office, and say, ‘Hey, can I see what’s been filed today,’”

That 230-year-old tradition was stripped away by many state court officials in the switch to electronic filing. They argued that court records had remained in “practical obscurity” when they were kept in paper form and therefore electronic access should be restricted. 

In fact, paper records were easy to find and traditional public access was, as the judges described it, as soon as the new filings crossed into the courthouse.

The South Dakota courts are reinstating the paper tradition of access in the electronic world. The decision casts light into the workings of the government where many court officials are fighting to extend the shade of obscurity into courthouse hallways, rooms and records. In doing so, South Dakota has reenforced the Midwestern way of democracy.

Joining the movement in favor of public access, in recent months the courts of Missouri, Iowa, New Mexico, Oregon and Maryland, and individual courts in California and Texas, have all set up portals that provide public access to new civil actions as soon as they are received. Nearly all federal courts have for many years made new filings public on receipt. The clerks in all those courts review and clerically process the new cases after they have been made public.

Courthouse News is represented by Herb Giorgio, Jon Fetterly and Katherine Keating with the Bryan Cave law firm, and Brendan Johnson with the Robins Kaplan firm. The state court administrator was represented by James Moore with Woods Fuller Shultz and Smith.

The First Amendment complaint was filed earlier this year by Courthouse News. “Despite its reach, Courthouse News remains a small company,” said the complaint. “At great expense, it has undertaken litigation against large state bureaucracies that are using publicly funded legal teams to deny the tradition and the right of access.”