From The Editor
Bill Girdner
Story Date:   
9th Circuit on Press Access to Court Records

     It was with great relief that I heard last week that the 9th Circuit had ruled in our favor. It was on a procedural issue but the opinion said a whole lot more.
     In the back of my mind, I always trusted that a federal court would likely see press access to court records as a constitutional issue. And a federal judge in Houston had ruled for Courthouse News on our challenge to the state court clerk there, ordering same-day access to the new actions.
     But our similar challenge to the Ventura clerk hit blizzard-like conditions at oral argument in Pasadena. And I wasn't so sure anymore.
     The challenge had a lot riding on it.
     In the years since a few California courts adopted the clunky Court Case Management System, it was apparent that there was a militancy in court officials about pushing the press back. They believed the public's record was theirs to control as they saw fit.
     At the time, we could only see the outward manifestation of that belief. We were stuck behind the bureaucracy's stone wall, waiting for days and weeks to see written court proceedings.
     By the time we could get to it, a new filing was no longer news. Newspapers walked away from the coverage.
     And there was no compromise from the bureaucrats, no bend, no reason, and at times a sneering dismissal of the role of the press, particularly evident in Orange County, another CCMS court.
     But in the intervening years, I realized there was an ideology behind the militancy.
     I first saw it a few years ago in Sacramento, in the arrogant and hard expression of bureaucrats who had just put CCMS in place and who told us in essence that a written court proceeding wasn't public until they said so.
     And it came into the light for all to see in the new e-filing rules passed by the Judicial Council last year, over the strong objections of CNS, the L.A. Times and the California Newspaper Publishers Association.
     The rules sidled into the notion that a court proceeding is not "official" until it is processed, and therefore not public until then. The rules were formed with the help of Orange County bureaucrats -- adopters of CCMS -- working with the Administrative Office of the Courts -- promoters of CCMS -- and pushed through by state judges leading the technology committee -- defenders of CCMS.
     Just in case one were unfamiliar with the fate of the disastrous software project, it was abandoned in 2012 after wasting a half-billion-dollars in public funds. Those behind the project remain in power.
     In a craven logic, the e-filing rules suggest that a state statute defining a public record as the kind of thing that gets put in a file should be interpreted to mean that a record must be put in a file in order to be considered public.
     So if it takes a couple months to put the new proceeding in a file -- too bad. Such gamesmanship with the words of a well-meaning California statute promoting transparency must be called to account, at some point.
     While the ideology of the CCMS crew was not before the 9th Circuit, its outward manifestation was.
     In Ventura, which also runs the junked software, the clerk refused to let the media see new matters until they were processed, delaying access for days, with individual cases avoiding review for extended periods.
     The brunt of 9th Circuit Judge Kim Wardlaw's ruling was to say that access to state court records is a First Amendment issue that belongs in federal court, overturning the trial court judge who abstained. But in her opinion, she also rejected the argument that providing prompt press access would put an overwhelming burden on the courts.
     "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.
     "To permit same day access, the Ventura County Superior may not need to do anything more than allow a credentialed reporter -- the same reporter who has been regularly visiting the court for the past twelve years -- to go behind the counter and pick up a stack of papers that already exist."'
     And then, in an unmistakable shot across the bow, the judge added:
     "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."
     It will be interesting to see how the the clerk and the administrative office react.
     Will they listen to the 9th Circuit and, as the clerk in Houston listened to Judge Melinda Harmon, and return traditional, same-day access to the press. Or will they continue to bankroll a white-shoe law firm with public money in order to fight press access every step of the way.
     One is the way of a reasonable public official operating in good faith. The other is the way of a bureaucracy imbued with a sense of pride, power and entitlement with little or no compunction about how it wastes public funds.
     I have my guess, but let's see what happens.

 
Coyote Speaks
Robert Kahn
Story Date:   
Fair and Square

     I don't think the guy who won $10 million at baccarat was cheating.
     In case you missed Dan McCue's story on our page this week, the Borgata Hotel and Casino in Atlantic City sued a guy who won $9.6 million from it, accusing him of cheating.
     The Borgata admits it took a $1 million deposit from the guy - Philip Ivey Jr. - then provided him a custom-made room and followed his precise orders, acting on the presumption, no doubt, that he was not as smart as the casino. Which was a bad bet.
     To recap the story: You win at baccarat by betting which pair of facedown cards will add up to closer to 9. You bet before the dealer deals two two-card hands. Because of the prevalence of face cards and 10s - which count for zero - if a baccarat player knows the top card is an 8 or a 9, it's safe bet to put your money on that hand.
     What Ivey did, apparently, was notice that the diamond design on the backs of the Borgata's playing cards are not perfectly symmetrical - the diamonds on one side are cut off smaller than those on the other. So if he could play one round through the eight-deck shoe, and somehow get the dealer to turn all the valuable cards, as needed, so that the short diamonds on the valuable cards would all be on the left, or the right, he could see if the top card in the shoe was a 6, 7, 8 or 9, and bet on that hand, if it was.
     So what clever device did Ivey use to get the Borgata to do this?
     He asked them to do it.
     That's right - and remember, the casino filed the lawsuit, so I'm telling the story from the casino's viewpoint.
     Because gamblers are superstitious, the casino acceded when Ivey asked it to have the dealer lay the cards on the table according to the instructions from his accomplice - who spoke to the dealer in Mandarin Chinese. The Borgata also complied with his request to have a dealer who spoke Mandarin.
     Why the Chinese speakers were necessary is beyond me. Maybe Ivey's Mandarin-speaking pal has really sharp eyes. At any rate, the dealer did just what he was told, so the second time through the shoe, after playing 104 games at house odds, Ivey knew whether the top card in the shoe was a 6, 7, 8 or 9 - because the Borgata had lined up the cards for him.
     So Ivey won $9.6 million.
     And the Borgata says he cheated.
     I don't see how. He did everything right out in the open. The casino was happy to take his million-dollar deposit. It was happy to give him a private room so it was just him against the house. It was happy to give him a dealer who spoke Mandarin. It was happy to use an automatic shuffling machine so the cards wouldn't be turned around in the shuffle, and it was happy to line up the cards however Ivey's pal told it to line them up.
     So who's cheating? It looks to me like a game between consenting adults, and one consenting adult - the Borgata - was dumber than the other one.
     The Borgata claims in its lawsuit that Ivey ran the same trick on a casino in England, and won a few million there. So what's the beef? That the Borgata found out about it too late?
     Everyone knows that house odds favor the casinos. That's how casinos stay in business. The people who run casinos are just as greedy for money as the gamblers are. The Borgata figures it's smarter than the average gambler - and it is - but it wasn't smarter than this one. Too bad for the casino.
     Next thing you know the casino will demand its money back because Ivey took advantage of the Borgata's compulsive gambling habit.

 
From The Courts
Milt Policzer
Story Date:   
Italian Style

     What have the elderly in Italy done to deserve this?
     Is the era of "Logan's Run" and "Soylent Green" coming upon us?
     Let's pause for a moment while I take deep breaths. I'm getting old, so this is not the sort of future I want to imagine.
     I'm speaking, of course, of the news report last week that former Italian Prime Minister Silvio Berlusconi has been sentenced to spend four hours a week at a center for the elderly.
     This was described in one report as putting him "among men and women who are essentially his peers."
     (At this point, if I were doing standup, I'd say this was like forcing George Clooney to date someone his own age. Fortunately, I'm above that sort of thing.)
     Who is being punished here?
     Isn't it bad enough to grow old in a nursing home without being subjected to a politician?
     What was even odder was that apparently both the prosecution and the defense asked the court for a community service order.
     Why would they conspire like this against old people?
     The only explanation that I can come up with is that the prosecution thinks Berlusconi will be able to teach his peers about self-reliance and successful longevity in the modern world.
     And the defense thinks Berlusconi will have a new gang of henchmen to help him terrorize the country.
     I can't wait to see how this turns out.
     Hmm ... Do you think the Pope is one of his peers? Now that would be a posse.
     
     Truth or Dare: The other news report that fascinated me last week was that the U. S. Supreme Court is going to consider whether states can make it illegal to lie about political candidates.
     Apparently an "antiabortion group" is arguing that lying is protected by the First Amendment - so you can say anything you want about a candidate you don't like.
     It's an interesting argument. After all, it's not freedom of true speech that's protected - it's just plain freedom of speech.
     And if the Supreme Court protects lying as free speech, it will mean that, combined with Citizens United, anyone can spend millions of dollars (otherwise known as speaking) lying.
     Just what democracy needs - the freedom to be completely misinformed.
     I'm dying to see how the Founding Father fans on the court are going to explain that that's what George "I'll Never Tell a Lie" Washington had in mind for the country.
     I do, though, see the problem with pro-truth laws. Who gets to decide what's true? How do you decide what's true?
     Maybe these questions are a good thing. If we can tie up all campaign speech in court with litigation over truthfulness, maybe we can get through some elections without campaigning. Imagine how good that would be for our mental health.
     If the pro-truth laws get struck down, there is another solution to the lying problem: more lies.
     If your opponent calls you a thief and a serial rapist even though you've never stolen or raped, don't deny it. No one's going to believe you anyway.
     Instead, describe the opponent as a drug kingpin and sleeper cell terrorist.
     Best liar wins.
     It's great practice for a career in government.