ARCHIVED: Amicus in Support of Ross E. Mitchell

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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

NO. 97-1737

ROSS E. MITCHELL,
Plaintiff - Appellant,

v.

ROBERT A. MULLIGAN,
in his Official Capacity as Chief Justice
of the Massachusetts Superior Courts,
Defendant - Appellee

ON APPEAL FROM AN ORDER OF DISMISSAL OF THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

Amicus in Support of the
Plaintiff - Appellant
from the American Association of Law Libraries

 

Robert L. Oakley
Washington Affairs Representative
American Association of Law Libraries
Georgetown University Law Center
111 G Street, N.W.
Washington, D.C. 20001

 


 

TABLE OF CONTENTS
  1. QUESTION PRESENTED

     

  2. STATEMENT OF INTEREST OF THE AMERICAN ASSOCIATION OF LAW LIBRARIES

     

  3. SUMMARY OF ARGUMENT

     

  4. ARGUMENT

     

    1. All persons with business before the Court should stand there equally and not be disadvantaged by the Court's own Rules.
    2. The burden on the Plaintiff by the denial of dial-up access to the Court's system is not insignificant. Moreover, the burden on the Court to permit such access is de minimis.
    3. This case can be resolved by the Court without opening the system to the world and without creating any significant additional workload for the Court.

     

  5. CONCLUSION

 


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

NO. 97-1737

ROSS E. MITCHELL,
Plaintiff - Appellant,

v.

ROBERT A. MULLIGAN,
in his Official Capacity as Chief Justice
of the Massachusetts Superior Courts,
Defendant - Appellee

ON APPEAL FROM AN ORDER OF DISMISSAL OF THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

Amicus in Support of the
Plaintiff - Appellant
from the American Association of Law Libraries

QUESTION

The question in this case is whether the Massachusetts Superior Court may adopt policies or regulations that limit the means of access to its records so as to effectively preclude equal treatment of the parties before the court.

 

STATEMENT OF INTEREST OF THE
AMERICAN ASSOCIATION OF LAW LIBRARIES

The American Association of Law Libraries is a nonprofit educational organization with over 5,000 members dedicated to serving the legal information needs of attorneys, judges, and legislators, law students and faculty, and the general public.

AALL's Government Relations Policy says that "accessible government information is both an essential principle of a democratic society and a valuable national resource created at taxpayer expense. Timely and equitable access to government information is the cornerstone of AALL's Government Relations Policy." It goes on to add that "federal, state and local governments have a duty to disseminate government information to their citizens. Government information should be available to the public at no or low cost in both traditional and electronic formats."

These public policy issues cause AALL to be concerned when citizens are denied equitable access to basic government or legal information. As a result, AALL wishes to make its views known to the court in the instant case.

 

SUMMARY OF ARGUMENT

Equitable access to government information is an essential component of a democratic society. Although as an administrative matter, the Court may need to limit access to its systems, fundamental fairness requires that it should not do so in a manner that disadvantages any person with business before the Court. In this case, the burden on the Court to make its system available to the Plaintiff on a dial-up basis is insignificant. In contrast, the plaintiff is disadvantaged in his proceedings before the Court, because he is forced to use valuable time to come to the Courthouse to check the system, while attorneys may do so from the comfort of their offices. To resolve this case, the Court would not be required to open its system to the world. It needs only to agree that fairness requires equal treatment of the parties before the Court and to amend its rule to permit access to attorneys and any other person with business pending before the Court.

 

ARGUMENT

Point 1
All persons with business before the Court should stand there equally and not be disadvantaged by the Court's own Rules.

 

 

As a general matter, AALL believes that government information of interest to the public should be available to any member of the public on a timely and equitable basis at low or no cost. Such a principle is vital to the functioning of a democratic society and is supported by laws and policies at both the federal and state level.

The principles of open government and open access to government information are well understood and generally accepted. Sunshine laws and Freedom of Information Acts have been adopted by virtually every state and the federal government. Federal depository library laws promote the distribution of government information to the public. Federal copyright laws preclude the federal government from copyrighting its information. Similarly, many of those courts that have reviewed the issue have concluded that public policy considerations preclude the copyrighting of basic legal information -- statutes and decisions -- at any level, federal or state. Finally, the federal courts' PACER system, comparable to the Massachusetts system now under review is open to anyone willing to pay the access fee.

AALL understands that the Court may need to limit access to its system because of limitations of staff and system resources. The Court has argued in this case that it does not have the system resources to open up the system to everyone who might be interested. While we may not agree with that conclusion, we do understand that as these systems are being developed, there may be a period of time when reasonable limitations need to be imposed in order to be sure the system is not overburdened.

Despite our understanding of those needs, we do believe that fundamental fairness requires that no one with business before the Court should be disadvantaged because of the Court's own rule. The Court's rule permits attorneys to have dial-up access upon request. If one cannot afford an attorney, however, or if a party chooses to pursue their case on a pro se basis, they are made to take extra time and come to the Courthouse to make relatively simple checks of docket information. Plainly, these requirements impose an extra burden on the pro se litigants that is not imposed on others. AALL believes that far from disadvantaging these pro se litigants, the Court should make every reasonable effort to treat them fairly and equally with their perhaps more well-off opponents who can afford to hire counsel.

Point 2
The burden on the Plaintiff by the denial of dial-up access to the Court's system is not insignificant. Moreover, the burden on the Court to permit such access is de minimis.

The Massachusetts Superior Court has indicated that the Plaintiff can have access to the system if he comes to the Courthouse. They believe that the burden on the Plaintiff to travel in that way is de minimis and that the burden to provide him with dial-up access is significant. AALL believes just the opposite.

 

 

Checking the docket should be a relatively simple matter that can be done in a matter of seconds. For the Plaintiff, however, it is not a simple matter. He must take time out of his busy day and drive approximately 15 miles to the Courthouse, taking approximately 30 minutes each way. Then he must park, walk inside and use the public terminals. Instead of taking seconds, the way it could, checking the docket for the Plaintiff must take at least an hour and a half.

Moreover, since the Court is only open during normal business hours, the Plaintiff must take time away from his business activities to make this trip. If he had access from home, he could obtain the information he needed during evenings and weekends when it would be less disruptive for him and when the drain on the Court's computers would also be reduced.

Finally, if the Plaintiff wishes to print out the results of his investigation, the Court charges him a per page fee. Again, if he were able to do the investigation from home, the cost would be significantly less.

Taken altogether, it is clear that for the Plaintiff in this case what should be a trivial matter to check on the docket, is a significant task requiring significant time and the expenditure of money.

On the other hand, the burden on the Court to allow the Plaintiff to have dial-up access is almost insignificant. It is likely, in fact, that by opening the system to a few pro se litigants who happen to have computers and enough technological sophistication to use the dial-up system, the Court would never even notice the difference. If, by chance, the demand for access increased to the point where it was causing a problem, it is a relatively simple matter to add modem capacity to the existing system. Modems today are relatively inexpensive, so it seems likely that for the expenditure of less than one hundred dollars, an additional modem or two could be added to the system, providing greatly increased capacity. AALL believes that such an expenditure by the Court is de minimis and should be made, if necessary, to assure fairness.

Point 3
This case can be resolved by the Court without opening the system
to the world and without creating any significant additional workload
for the Court.

For very good reasons, the Court does not wish to open the system to the entire world. Credit bureaus and other businesses would make regular use of the system if it were allowed. In an ideal world, AALL would want the system to be open to everyone with a legitimate use. However, we can understand the Court's fears that such open access could potentially swamp the system and make it inaccessible for the people it was originally intended to serve.

 

 

We believe that the considerations regarding such commercial use are very different from the issues in this case. In the case of the commercial use, the use would be intensive and regular. Furthermore, the use made by such companies is generally in furtherance of their business, not in furtherance of the business of the Court. In the case of the Plaintiff in this case, the likely use is connected with the case in which he is involved. Singlehandedly, he is very unlikely to swamp the system, especially since at least some of the use would be during the evenings and on weekends.

This case can be resolved simply. The Court need not increase its burdens significantly, nor open its database to the entire world. All that is needed is for the Court to amend its rules to provide equal access for all parties with business before the Court. That would mean that the system would be available on a dial-up basis to attorneys and to pro se litigants on an equal basis.

 

CONCLUSION

The Massachusetts Superior Court is under no obligation to make its docket available electronically. Once they have done so, however, AALL believes that they must do it in a way that is fundamentally fair and preserves a level playing field among the parties before the Court. We urge this Court to reverse the Court below, remanding for further proceedings and finding for the Plaintiff, with direction to the Court to amend its rules to permit access upon request by attorneys and by any other person with business before the Court.

Respectfully submitted,
Robert L. Oakley

On behalf of the
American Association of Law Libraries
Georgetown University Law Library
111 G Street, N.W.
Washington, D.C. 20001