OFF THE WIRE
By BILL GIRDNER
National newspapers, including the Los Angeles Times and New York Times, have joined in a pending Ninth Circuit case challenging press access delays in California courts.
The underlying case was brought by Courthouse News against Ventura's court clerk over delays in access to new complaints that ran up to a month. The delay sapped the news out of important legal battles, for example, over water rights and wind farms.
"Having access to complaints is an important component of reporting on the legal system and the judicial branch," said the brief by The Reporters Committee for Freedom of the Press and 25 media organizations, including The Associated Press, Dow Jones & Company, Bloomberg L.P., The New Yorker, News Corporation and The Seattle Times Company.
"Civil complaints are most newsworthy the day they are filed, and, accordingly, the media is most likely to report on lawsuits of public interest and concern at that time," said the signatories, also including The E.W. Scripps Company, Gannett Company, Hearst Corporation and the McClatchy Company.
The journey of the case began three years ago when it was filed in federal court in Los Angeles. Judge Manuel Real dismissed on abstention grounds, saying the matter was for state courts to decide.
The Ninth Circuit reversed.
"Open government has been a hallmark of our democracy since our nation's founding," said the opinion by Judge Kim McLane Wardlaw joined by Mary Murguia and John Noonan.
"We have observed that the news media, when asserting the right of access, 'are surrogates for the public,'" said the ruling. "The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.'"
Towards the conclusion of the 32-page opinion, Wardlaw said, "We also trust that the Ventura County Superior Court would comply with any federal injunction requiring it to make unlimited civil complaints available within a specified time period."
Following that April decision, the clerk in Ventura began providing same-day access to all new actions filed before the court closes at 3:00, contradicting the defense argument that it was "impossible."
Despite the clerk's concession, lawyers for Jones Day who represent the clerk -- and the over-arching Judicial Council on other matters -- again moved for dismissal, again before Judge Real.
The second motion to dismiss included an argument that complaints are not really filed until they are processed, parroting a position taken by the council's Technology Committee.
As part of e-filing rules proposed last year, the tech committee attempted to create a new "officially filed" category for public documents. Definitional sleights of pen translated that term to mean after processing.
In turn, press access would be delayed, according to the rules and statements by members of the committee, until after a court record is officially filed, in other words processed, which comes days, weeks or months after a record is actually filed across the counter.
The proposed rules brought a chorus of objection from the L.A. Times, California Newspaper Publishers Association, First Amendment Coalition and the Bay Area News Group among many others. The council over-rode those objections and voted unanimously last year to adopt the rules.
Since then, the effort by a few courts to keep with the notion of official filing has required severe administrative contortions.
In Ventura, for example, a clerk stamps new paper complaints as "received" when they cross the counter. After processing, the clerk stamps "filed" on the complaint and backdates the stamp to the earlier day it was received.
To similar effect, in Orange County Superior, an e-filing court, software sends an electronic message saying a new filing has been received. After a clerk processes the case -- currently two days after the case crosses the virtual counter -- an electronic "filed" stamp is affixed to the complaint, backdated to the day it was received.
In a peculiar twist, Orange County's file stamp is a mash-up of two separate elements, the earlier date when it was received and the time of day when it was later processed.
While Ventura has largely complied with the direction from the Ninth Circuit, a few courts such as Orange County have not. Preserving the notion of "official filing" would make a difference to those few courts that continue to refuse same-day access.
The great majority of courts in California are not affected because they provide same-day access to the press, including the courts in Los Angeles, San Francisco, Sacramento, Fresno, Bakersfield, Oakland and Contra Costa, among others.
In August, Real dismissed the Courthouse News case against Ventura Superior for the second time. He said complaints need to be processed before press access, and relied on a case from the 1800s saying a complaint is not public until there has been a hearing.
Courthouse News again appealed, represented by Roger Myers, Rachel Matteo-Boehm, Jonathan Fetterly and Leila Knox with Bryan Cave. They asked for an accelerated briefing schedule, which was granted.
In their brief filed October 31st, the Bryan Cave lawyers said Real's dismissal cannot stand.
"The sum total of the dismissal of this case is the deeply troubling result, if allowed to stand, that there is no First Amendment right of access to civil complaints unless and until some unspecified date after which they are 'minimally processed' -- whatever that might mean -- and have been the subject of 'a hearing to which the public has a First Amendment right of access,' even if that is days, weeks or months after a complaint is filed ... or never happens at all," said the Courthouse News brief.
In their supporting amicus brief filed last week, a virtual Who's Who of the national media agreed.
"The news media and organizations that advocate for the free press and for the freedom of information have a strong interest in the policies governing the right of access to court documents," said the amicus brief. "Complaints initiate lawsuits and are therefore particularly newsworthy at the time they are filed."
"As technology advances, the definition of 'fresh' news continues to contract. Websites of the Los Angeles Times and the New York Times, for example, or Google News, measure freshness of news updates in minutes. In this environment, it is imperative that the first new stories be as accurate and as complete as possible," said the brief. "To delay access to complaints is to deny meaningful access."
The answering brief from Ventura's clerk is due before the end of the year.
Among the 25 news organizations signing onto the amicus brief by The Reporters Committee for Freedom of the Press are the American Society of News Editors, Association of Alternative News Media, First Amendment Coalition, First Look Media, Inc., MediaNews Group, Inc., National Press Photographers Association, New England First Amendment Coalition, New England Newspaper and Press Association, Inc., The News Guild, North Jersey Media Group Inc., Online News Association and the Radio Television Digital News Association.
They are joined by The Associated Press, Bloomberg L.P., Dow Jones & Company, The E.W. Scripps Co., Gannett Co., Hearst Corporation, McClatchy Company, News Corporation, Stephens Media LLC, The Seattle Times Company, The New Yorker, The New York Times Company and Los Angeles Times Communications LLC.
