SANTA ANA, Calif. (CN) – Courthouse News filed a First Amendment action late Tuesday against Orange County’s court clerk over his policy of withholding newly filed cases until they are processed, in violation of a series of federal rulings.
The federal complaint follows a judgment in June by U.S. District Judge James Otero on the same issue.
In that ruling, Otero enjoined Ventura’s state court clerk who was also withholding access to new civil actions. Otero found that the press’s First Amendment right of access attaches to new civil complaints when they are received by the clerk, not after they are processed.
Courthouse News followed on Otero’s ruling by sending it to a small coterie of recalcitrant clerks in California, asking them to comply with the judge’s decision on First Amendment law.
The in-house counsel for the court in Orange County answered, “The court is not inclined to alter its current procedures.”
The resulting complaint on Tuesday emphasized the large number of cases withheld from news coverage as a result of those procedures.
“Orange County Superior Court withheld about half of all new unlimited complaints received during the last three months of 2016 for between one and nine days while they were being processed,” the Courthouse News complaint says. The news service is represented by Rachel Matteo-Boehm and a team from the Bryan Cave law firm that includes Roger Myers, Jon Fetterly, Katherine Keating and Goli Mahdavi.
The new civil cases regularly involve controversies of public interest, such as water rights and political disputes. One of the cases withheld in Orange County was brought by the citizens of San Juan Capistrano who said the city hiked their water rates without legal justification and refuses to refund the money.
Because of the stories found in new filings, journalists since time out of mind have checked the clerk’s office at the end of the day, as part of the courthouse beat. That routine was followed in Orange County.
Throughout the 1990s, reporters from the LA Times, the Orange County Register and other newspapers would check the new cases in the Santa Ana courthouse at the end of the court day. A records room clerk gathered the new civil actions from the intake clerks and placed them in a wooden box on a table at the back of the records room.
Nearly identical routines were followed in Los Angeles, San Francisco and San Jose, as well as courts around California and throughout the nation.
But in the early 2000s, Orange County’s then-head clerk Alan Slater began withholding new cases from the press. Reporters for the LA Times and Courthouse News petitioned Slater in person for a return to timely access.
He refused, saying the delay would only become longer and he was comfortable resolving the matter in court. A leader among California clerks, Slater then shut down the press room.
His successor, Alan Carlson, was equally firm in rejecting timely access for reporters as the court moved over to e-filing. He also paralleled his predecessor’s outlook on the press.
In addresses to fellow clerks at national conferences in Williamsburg in 2011 and 2013, Carlson described journalists as muckrakers hustling for a buck and compared their efforts to obtain timely access to opening the mail before delivery.
Carlson adamantly refused to improve press access in Orange County, saying he did not consider a case filed until his office “accepted” it, which in the context of e-filing means the conclusion of all clerical procedures tied to the new case.
Like the clerk before him, Carlson was considered a leader within California’s statewide administrative office of the courts. He pushed his court away from paper and towards e-filing, with Orange County Superior becoming the first court in California to mandate e-filing across the board in 2013.
Paradoxically, e-filing in state courts has often slowed press access because journalists are regularly pushed down the line behind administrative tasks. Federal courts have followed a different path in the conversion to e-filing and give the press and public instantaneous access to new complaints as soon as they are received.
In Manhattan’s powerful media market, for example, the court clerk dismantled a press policy of same-day access to the new complaints when the court moved to e-filing, pushing the press corps behind processing.
That move resulted in a First Amendment challenge filed by Courthouse News in the Southern District of New York in November. The case was assigned to U.S. District Judge Edgardo Ramos, who ruled from the bench in December granting a temporary injunction against the clerk’s policy of withholding the new complaints.
“I find that injunctive relief would serve the public interest,” Ramos said, hearing the case in the renovated federal courthouse on Foley Square. “There is an important First Amendment interest in providing timely access to new case-initiating documents.”
“The court concludes that CNS has succeeded in establishing a qualified First Amendment right of timely access to such complaints that attaches when new complaints are received by a court,” Otero wrote.
Both judges followed a 2009 ruling in Houston by U.S. District Court Judge Melinda Harmon, who enjoined Houston’s then-state court clerk Loren Jackson. Jackson was also withholding press access while he docketed them, the old word for clerical processing of paper complaints.
“It is clearly in the public interest to enjoin defendants’ conduct,” Harmon wrote. “There is an important First Amendment interest in providing timely access to new case-initiating documents.”
The litigation over Ventura started two years later in 2011, and lasted five years. During that legal marathon, the Ninth Circuit also weighed in on the issue.
“The Supreme Court has repeatedly held that access to public proceedings and records is an indispensable predicate to free expression about the workings of government,” Circuit Judge Kim Wardlaw wrote.
The three-judge panel reversed a lower court ruling against Courthouse News.
Despite that body of law, the state court administration in California has hired a white-shoe law firm at public expense to continue fighting the Ventura case, with the full panoply of corporate litigation tactics. The case is currently back before the Ninth Circuit on appeal.
And a small group of California clerks continue to withhold new cases while they process, keeping them away from the press until they are stale news.
They have pursued that policy despite letters from Courthouse News that included copies of Otero’s ruling. Orange County’s new clerk, David Yamasaki, has received the same information twice, once while he was the clerk in Santa Clara County Superior Court in San Jose, and again after he moved to Santa Ana this past fall.
In both courts, the policy of withholding remains in place. Both courts have another key policy in common that also affects press access.
They close the doors to the clerk’s office early, further delaying press access and making work harder for all those who visit the clerk’s office to pay fines, file other forms and conduct research into public records. Santa Clara closes the clerk’s office at 3:00 p.m., and Orange County at 4:00.
The early closure compounds the effect of withholding the cases in Orange County in particular because the office is the only means of seeing the new cases without paying an exorbitant online fee. While the press and public are excluded, the clerk’s staff continues to work until 5:00 p.m. behind locked doors.
In its entreaties to the resistant California clerks, Courthouse News regularly offers practical, no-cost solutions which include a media box on the intake counter for paper filings or an electronic inbox for e-filed complaints. Those solutions were offered in both Santa Clara and Orange County.
“Defendant’s actions deprive CNS, and by extension its subscribers, of their right of access to public court records secured by the First Amendment of the U.S. Constitution,” the complaint says. “CNS is therefore entitled to declaratory and both preliminary and permanent injunctive relief to prevent further deprivation of the First Amendment rights guaranteed to it and its subscribers.”