Obduracy Defined

When I read Maria Dinzeo’s article “California Judicial Branch Scrambles for Budget Dollars” last week, I wondered if the judges and clerks so concerned with their budget knew about the large sums paid to fight press access.

The context was that a couple weeks earlier, Courthouse News filed a First Amendment action in federal court challenging Orange County’s court clerk over his policy of withholding access to new civil complaints – a regular source of news – while his office grinds through the administrative process. We filed because delay is deadly to news.

The underlying legal issue is rapidly becoming settled. In December, a federal judge in New York enjoined Manhattan’s state court clerk from withholding new complaints during processing.

A few months earlier, a federal judge in Los Angeles enjoined Ventura’s state court clerk from withholding new complaints during processing. Judge James Otero in the Central District found that a First Amendment right of access attaches upon the clerk’s receipt of the documents.

Both decisions followed an earlier ruling by a federal judge in Houston who enjoined the state court clerk from withholding new cases during processing.

The only judge to have ruled otherwise was overturned by the Ninth Circuit.

So a few questions naturally arise: why is California’s court bureaucracy still fighting press access; why do a few California clerks believe they can refuse to follow those federal rulings; and why is California’s Judicial Council staff paying a white-shoe law firm to defend that refusal with scorched-earth litigation.

Those decisions from within the bureaucracy, formerly called the Court Administrative Office and now called the “staff” of the California Judicial Council, reveal a rot inside the system.

It started many years ago with excessive pay and perks for bureaucrats, far above what similar jobs pay in federal courts, along with grand projects such as a software program called the Court Case Management System that cost $500 million before collapsing in ignominious failure. But the rot remains.

The battle of New York is apt.

In the past, with paper filings, the press corps in Manhattan’s state court had perfect access to all the new cases on the day they were filed. In the transition to e-filing, the clerk pushed the press down the line behind processing.

The federal challenge was a clean, quick fight, professionally and efficiently handled on both sides. The New York County clerk was ably represented by staff counsel for the administrative office of the courts.  Courthouse News was represented by Bryan Cave.

One month after the federal complaint was filed, U.S. District Judge Edgardo Ramos in the Southern District of New York enjoined the state court clerk from withholding access to the new civil complaints while they were processed.

Almost immediately, state court administrators communicated their intention to respect the ruling and pivoted.

In late January, the clerk in Manhattan began providing access to the new filings immediately upon their receipt. Journalists now see the new cases as they come into the clerk’s office, day or night, through what is essentially an electronic inbox.

Contrast that sequence of events with the actions and attitude of California court administrators. After paying the firm of Jones Day millions of dollars in a five-year campaign against press access in Ventura’s state court, they lost.

The Judicial Council staff, who ultimately answer to the chief justice, had vowed to appeal a loss. The appeal is now pending in the Ninth Circuit.

All that connects to Orange County, where Courthouse News is trying to enforce Judge Otero’s ruling. Before going to federal court, we sent a letter asking the Orange County clerk – who is within the Central District’s jurisdiction – to follow the federal ruling and give us access upon receipt. In-house counsel for Orange County Superior replied and said the clerk had no intention of changing his practice.

The in-house counsel, who is already accounted for in the local court’s budget, then handed the case off to a private law firm which will,  if the past is any guide, generate hundreds of thousands of dollars in new public expense. That private representation, again Jones Day, was arranged by the Judicial Council staff.

So when I look through Dinzeo’s story about the budget agony of the California courts and I see that Judge James Herman of Santa Barbara is quoted as saying the courts should get more money because they serve the poor, I wonder if he is aware that the Santa Barbara court clerk has twice been asked in writing to stop withholding new cases. And the clerk continues to withhold.

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