CNS First Amendment Case Against Ventura Bounced From Federal Court

     LOS ANGELES (CN) - A First Amendment action by Courthouse News over press access in Ventura Superior Court was rejected for a second time by U.S. Judge Manuel Real on Monday. Ruling from the bench, the judge said the press has no right to see new cases on the day they are filed, contrary to a decades-old tradition in his own courthouse and many others.
     Real cited an 1884 decision by Justice Oliver Wendell Holmes in finding that there is not "a long tradition" of same-day press access. In that long-ago decision, Holmes said the press has no right of access to court records until there is a hearing before a judge, law that has long since been displaced.
     Lawyers for both sides agreed that an appeal to the Ninth Circuit is likely.
     Real said in his ruling, "This right to same-day access would give the public the right to see unprocessed complaints before they are available to judges and their clerks."
     Two floors below his courtroom in Federal Court in Los Angeles, the press corps continues to see unprocessed paper-filed actions on the day they are filed, before they are delivered to judges and their clerks. The press has had that access for at least three decades, including the many years when Real was chief judge.
     At that time, as part of a daily routine, journalists from the third floor press room would troop down to the clerk's office in the late afternoon to check the day's new filings, including reporters from the L.A. Times, the Daily Journal, United Press International, Copley Press, City News Service, the Orange County Register, the Central District Almanac and the Daily News.
     The tradition has been carried forward into the present with both paper cases which are reviewed in a small room outside the clerk's office and electronically filed cases which are posted publicly right away, before they are assigned a judge. A great number of California courts provide similar access, including the nation's biggest court Los Angeles Superior, where journalists in the press room see new cases on the day they are filed, before they are processed.
     Almost three years ago in the same case by CNS against the Ventura clerk, Robert Naeve with Jones Day, who represents the state courts, argued that federal courts should defer to state courts in such matters.
     The argument led Real into error and he dismissed the CNS case on grounds of abstention. He was reversed by the Ninth Circuit in April this year, in a sweeping 32-page opinion by Judge Kim Wardlaw joined by Judge Mary Murguia and Judge John Noonan.
     "The Ventura County Superior Court has available a variety of measures to comply with an injunction granting CNS all or part of the relief requested," Wardlaw wrote. "For instance, the court could provide reporters with a key to a room where new complaints are placed in boxes for review before being processed, as does the Los Angeles Division of the U.S. District for the Central District of California."
     "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," said the Ninth Circuit judge in her opinion.
     Ventura clerk Michael Planet followed that ruling by granting same-day access to newly filed actions, before they are processed.
     On Monday, in the brief comments customary in Real's motion hearings, Rachel Matteo-Boehm with Bryan Cave, on behalf of Courthouse News, noted the shifting nature of her opponent's arguments.
     "The argument has shifted in the reply papers to say there is no right of access until the document is processed, even if it takes days or weeks," said Matteo-Boehm. Referring to current press access in Ventura Superior Court, she added, "CNS says that 80 percent of the new complaints are being seen on a same-day basis, which goes to show that same-day access is doable when a court puts its mind to it."
     Naeve answered: "We were careful to refer to the 'receipt' of a complaint and not to its filing. That's the point of this argument."
     The distinction between "received" and "filed" is central to a circuitous interpretation of state law advanced by the San Francisco-based bureaucracy of the California courts.
     The "received" stamp has been used almost exclusively in California courts that adopted the now-defunct Court Case Management System. That software was pushed by the state courts' Technology Committee and the attending bureaucracy, formerly known as the Administrative Office of the Courts and now called "the staff" of the California Judicial Council.
     The few courts that adopted CCMS software, including Ventura Superior Court, consistently pushed press access back to the point where the news contained in the new filings is no longer news.
     Their practice of delay was intellectually backed up by the Technology Committee and its chairman, Santa Barbara Judge James Herman, who advanced a two-filing-date theory, with one date for lawyers and a later one for journalists.
     According to the theory, the "filed" date for lawyers corresponds to the day a document crosses the counter into court. But for journalists, another "officially filed" date corresponds to the day when processing is completed, days or weeks later.
     In terms of courthouse practice, the distinction is handled by having clerks stamp new filings as "received" when they cross the counter, and, after processing, backdating those documents with a "filed" stamp which corresponds to the earlier date when the document crossed the counter.
     That routine puts lawyers on the front side of the limbo period when a case is being processed, and puts journalists on its back side. Lawyers, a powerful constituency within the court bureaucracy, receive a file date corresponding to the day they pushed the document across the counter. While journalists, a largely voiceless group within that bureaucracy, must wait until court officials are done with their various administrative tasks and the document is backdated.
     The highly unusual two-filing-date theory -- no other state court has followed it, nor has any federal court -- made its first appearance in a set of efiling rules proposed last year by the Technology Committee.
     At the time, organizations representing nearly every newspaper in California objected to rules that appeared to enshrine a limitless delay for press access to newly filed matters.
     The Judicial Council overrode the press objections in June of last year.
     Subsequently, Chief Justice Tani Cantil-Sakauye promoted the status of the Technology Committee by elevating its rank within the myriad of state court committees to the top-five rank of "internal" committee. That elevation came despite the fact that the committee and its leaders were responsible for the promotion and dogged defense of the CCMS software project that was junked two years ago after wasting a half-billion dollars in public funds.
     The two-filing-date theory has now re-emerged in the papers filed by Jones Day that successfully argued for Judge Real to once again dismiss the CNS case against Ventura's clerk.
     Because the clerk is currently providing same-day access to the great majority of new actions on the day they cross the counter and before they are processed -- the original objective of the CNS action -- he would have little interest in continuing litigation which is generating a public expense of hundreds of thousands of dollars for the continuing defense of the action.
     On the other hand, based on their past battles against transparency, the Technology Committee and the staff of the Judicial Council would be willing to spend large amounts of public money in defense of the two-filing-date theory and in opposition to press access.
     Monday's ruling by Real sets the stage for resolution by the Ninth Circuit in considering the Technology Committee's theories on press access and how they square with the First Amendment.