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Friday, February 23, 2024 | Back issues
Courthouse News Service Courthouse News Service

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.

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