Tide of Criticism Meets Court Admin Office Idea for New Fee

     (CN) - The California court bureaucracy's campaign to assess a $10-per-file fee for every record request has brought a tide of criticism from key legislators, judges and newspapers, saying the proposed legislation would "bring the shades down" and "have a negative impact on our democracy."
     "When we use the judicial system like that we're neutralizing the ability to enforce our laws, which will have a negative impact on our democracy," said state Senator Noreen Evans, chair of the Senate Judiciary Committee. "A document fee reduces transparency in government, denies access to public records and it also impacts journalists who cover the courts."
     The senator, a democrat from Santa Rosa, is also a member of the courts' rule-making Judicial Council. She has been a staunch defender of Chief Justice Tani Cantil-Sakauye and supported many initiatives from the chief's staff in the Administrative Office of the Courts, the same bureaucracy that is pushing the new search fee.
     Evans' opposition is a strong indicator of legislative wind direction on the trailer bill that would enact the fee.
     The senator also slammed Governor Brown's Department of Finance which is backing the proposal, saying the Brown administration is strong-arming the courts into become a fee-for-service branch of government. "The Department of Finance is forcing the courts to try to raise fees," said Evans. "What the Department of Finance doesn't understand is the judicial branch is not just another agency of government that can raise fees."
     A second key legislator, Senator Loni Hancock, who chairs the Senate budget subcommittee vetting the trailer bill, is also critical of the charge.
     "Piecemeal fee increases can add up to a real lack of access for reporters, for low income and middle income people as they seek our justice system," said Hancock in a recent interview. "So in the interest of transparency in a democracy as well as access to justice for all people, it's of great concern to me to increase those fees."
     Under existing law in California, courts charge $15 for searches of court records that take over 10 minutes. The proposal put forward by the administrative office and backed by Brown would change the government code to charge $10 for every name, file or information that comes back on any search, regardless of the time spent.
     The rationale behind the new fee has been varied and muddled.
     Supporters first said the fee was aimed at data miners but did not provide a definition of who they are. Then they said they needed money for the courts even though they cannot say what funds, if any, the fee would bring in. Then they simply said they do not have stop watches -- to measure the ten minutes required under current law to trigger a search charge.
     Most searches are quick and come back in much less time. But, as the judges and legislators pointed out, the new fee would cause anyone to think twice before asking to look at court records.
     For news organizations that routinely review a large number of court files in their work, the new fee would quickly add up to hundreds of thousands of dollars. For example, a newspaper reporter reviewing the day's newly filed cases for news would be hit with a ten-dollar fee for every case reviewed, a sum that would add up to roughly $400 a day in San Jose's superior court and $700 a day in San Francisco.
      Judge Steve White in Sacramento described the proposed legislation as a "ham-handed" piece of work by the administrators for the courts.
     "It would put almost anyone who covers court news out of business," said White. "Whether that's the intention or not, that would be the result. Through that lens you can appreciate that it's not much different than asking a cover charge to watch the trials we preside over."
     
     Press Coverage
     
Among the state's newspapers and television stations, the fee idea has worked as a self-inflicted black eye for the courts' administrative office.
     SF Gate, for example, published a story about the $10 per file search fee entitled "Fee Would Sock Public for Court Records."
     The Santa Rosa Press Democrat published a story titled, "State wants to charge citizens to see public court records," followed by an editorial titled, "Price-gouging plan to fund state courts."
     Underneath a photo of the chief justice, the newspaper's editorial contrasted the chief's call for "equal justice for all" in this month's State of the Judiciary address with the actions of her staff in proposing the fee. The newspaper described the fee as "an astonishingly bad idea to raise money for the courts -- charging $10 for so much as a peek at any file in any courthouse."
     "Arbitrary and excessive fees would put some information services out of business," the newspaper's editorial added. "Just as important, they would be a deterrent to journalists and citizens wanting to do research or to simply follow a court case. Price gouging will only push the state further from her goal of justice for all."
     An editorial in the Monterey County Herald pointed out the importance of access to court files in order to report on important public business.
     "A $10 fee would be devastating to newspapers and other news operations, especially relatively small ones such as The Herald. Newspapers this size review dozens of new court files each month in search of potential stories - many of them about important public business."
     "Most newspapers and TV stations in California would be forced to cut back significantly on their reporting of local matters, meaning the public would receive much less information about ongoing court cases and newsworthy civil matters," said the Herald.
     The story has also been picked up by the Sacramento Bee, the Fresno Bee and TV stations KPBS, NBC affiliate KCRA in Sacramento and ABC Channel 10 in San Diego.
     ABC noted the concession by the courts' head administrator that the fee was bad policy.
     "Steven Jahr, administrative director of the courts, agrees that it's not `sound policy' and says the courts want the Legislature to restore funding," said the ABC story. "But he says the fee will be necessary if Brown and lawmakers do not increase the court budget."
     The most powerful newspaper in the state, the Los Angeles Times, has yet to weigh in.
     Confusion over the story has also been inadvertently spread by the administrative office and the Judicial Council.
     The Press Democrat said in its story, "The search fee alone would generate $6 million, said a spokesman for the Judicial Council, the policymaking body of the courts."
     That estimate was in turn picked up in an Associated Press story published by the Fresno Bee, saying, "A spokesman for the Judicial Council, the policymaking body of the courts, tells the Santa Rosa Press Democrat the search fee would generate $6 million annually."
     But the estimate is incorrect.
     A separate proposal to raise copy fees from 50 cents a page to $1 a page is estimated to raise $6 million, according to the report of the Public Coordination Liaison Committee of the Judicial Council.
     The search fee, however, does not have any estimated fiscal impact. "The amount of revenue this proposal will bring in is impossible to estimate," said the report by the Judicial Council's public coordination committee.
     A spokesman for the governor's finance department, H.D. Palmer, defended the inability of his department to predict any financial impact from the new fee by saying individual courts have not been consistent. He then pointed to different costs for copies of documents placed online by the courts in Sacramento and Orange County.
     "As an example, our legal staff advise that Sacramento Superior County provides documents free of charge, whereas counties like Orange will charge," wrote Palmer.
     In fact, neither court charges for a search of its records.
     Courts traditionally charge to make copies of documents. Sacramento provides online copies of the documents for no charge while Orange County charges between $7.50 and $40 for online copies of documents, depending on the number of pages. No judge or court clerk has so far suggested that Orange County or any other court should limit their copy charges to a flat fee of $10, which is what the finance department's call for consistency would suggest.
     Senator Evans said she was disturbed by the lack of cogent analysis behind the search fee.
     "If we're going to go to the extent to force citizens to pay for access to justice, we'd better darn well know how much revenue it's going to produce," she said. "The fact that the Department of Finance doesn't know how much revenue this is raising is disturbing."
     
     `Pull Down the Shades'
     
Most commentators argue that the fee is more likely to drive people away from court records than raise funds for the courts.
     "If it's the intention of this proposal to bring in revenues to keep courts open, that idea is larded with irony," said Judge White. "It would make court operations more inaccessible."
     "One has to question the purpose of this," he continued. "If something this extravagantly expensive and onerous were passed, it wouldn't bring in any revenues because it would shut down access to court documents. Some people suggest that that's the idea behind the proposal, to pull the shade down instead of raising revenues."
     White is president of the Alliance of California Judges, a group that has campaigned for reform of the powerful and insular administrative office.
     The latest proposal from that office provided an opportunity for the Alliance to review the office's history of gaffes.
     "Our branch leaders have hit a new low by proposing stealth trailer bill language to charge media outlets and the public for access to court records," wrote Judge Maryanne Gilliard. "It is another instance where access to justice is being denied by those who purport to be champions of the concept."
     "Members of the Alliance have been ridiculed and stonewalled," she added, "the integrity of respected State Auditor Elaine Howle was questioned after her audit report on CCMS was released, print and television reporters and their supervisors have been called and chastised by AOC staff, and legislators were insulted by condescending comments about their support for the Trial Court Bill of Rights."
     The reference to Howle involved a devastating analysis two years ago of the Court Case Management Software project, saying it had been mismanaged by the administrative office and its projected cost had been underestimated by hundreds of millions of dollars.
     In a report last week, the state auditor again criticized the ability of the courts' central bureaucracy to accurately account for public funds. The Administrative Office of the Courts is required to report to the Legislature and the state auditor twice a year on spending in the state's trial courts.
     "The AOC's semiannual report was neither accurate nor complete with respect to data from the superior courts," said Howle in her report to the Legislature. In addition, said Howle, the administrative office had left financial numbers out of its report that should have been included.
     In Judge Gilliard's statement last week, she ticked off the controversies involving the administrative office, saying they would not have come to light but for inquiry from legislators, judges and the media.
     "If not for the dogged determination of the entities listed above," she wrote, "we would not have been informed about the true cost of CCMS; the pension perk provided to the top 30 highest paid central office staff; AOC staff telecommuting from outside our state and country; the sneaky attempt to gut our local courts of the right to elect their own presiding judges; outrageous maintenance costs, including over $8,000 to remove gum and over $200 to replace light bulbs; the phony AOC furlough program that appeared to take away a work day but in fact replaced it with an extra day of vacation; a purported "hiring freeze" when in fact the AOC continued to hire; free ipad giveaways to 14 top-ranking individuals, including those responsible for CCMS; and the attempt to block the audit of CCMS by branch leaders, including then Chief Justice Ronald George.
     Gilliard added, "Not one of these revelations came without a fight."