California’s court bureaucracy used public funds and a bagful of tricks to fight press access before losing on a legal slam-dunk last month. This news service is now asking for the legal fees it racked up on the long road to vindicating a press tradition in the courts of America.
LOS ANGELES (CN) — After ten years of legal trench warfare between the court bureaucracy of California and this news service, the First Amendment right to see new court filings upon receipt has been established and the bill has come due.
The litigation that started in 2011 traveled through tens of thousands of pages of discovery documents, thousands of pages of motions and exhibits, and three trips to the federal court of appeals with three corresponding opinions interpreting and reaffirming the power of the First Amendment.
The final ruling that came out of the brief-bashing conflict was handed down two weeks ago by a federal judge in Los Angeles, declaring that the press has a qualified right to see new court filing when they are received by the court, and that right applies in the old paper medium and in the new electronic medium.
And on Tuesday another measure — dollars spent — showed up in the last stretch of litigation. But this measure was in the millions. Lawyers for Courthouse News asked for $6.5 million in attorney fees spent defending traditional First Amendment access against a multi-pronged attack by an organized, powerful, publicly funded and calculating opponent.
The legal case turned on an age-old American tradition of press access to new court complaints, which represent the new controversies coming into the courthouse. That tradition had come under withering fire over the last decade from state court clerks throughout the nation, advancing with a tech army of scanners, servers and e-file programs.
But the army, it was shown, could go both ways. It could be used to knock the press back, but, too, it could be used to keep traditional access in place and even make it better.
So it was that the federal courts used the rise of the computers to increase transparency and advance the constitutional cause of open government. While a grand alliance of state court officials used them in the opposite way, to interfere with access, to cast the new filings into a penumbra, a twilight zone of delayed news, and in many states, to sell the records for some side money.
“In this case, a small publisher of a news service covering the courts found himself challenging not only a single court but also the state Judicial Council, which was invested in a docketing program that, as implemented, created `processing’ delays in access to new filings, and paid for at least part of the defense,” said the fee memorandum written by Roger Myers with the Bryan Cave law firm.
Other parts of the Courthouse News fee motion were written by Rachel Matteo-Boehm who submitted a 1,500-page account of ten years of billing records, Jon Fetterly who prepared a 453-page blow-by-blow summary of ten years of legal combat, and Katherine Keating who worked on the declarations. John Amberg, also with Bryan Cave, represented Courthouse News in a parallel action against the court clerk in Orange County.
Opposing them throughout the long war have been lawyers Robert Naeve, Cary Sullivan and Erica Reilley from the Jones Day law firm.
“The defense raised every obstacle possible to prevent resolution of the core issues involved. Still, the publisher persisted, at great cost. After 13 years, a decade of litigation and three trips to the Court of Appeals, ‘Courthouse News Service (CNS) … established that a First Amendment right of access to civil complaints exists at the time of filing, and that this right is reviewed under the Press-Enterprise II standard.’ CNS v. Planet, Order (9th Cir. June 30, 2020)” said the memorandum by Myers.
History was recounted in Tuesday’s motion and in the massive file of the case itself. It began with a tech initiative pushed in the early 2000s by the old chief justice, Ronald George, also referred to outside his presence as King George.
He retired in 2011 but the tech project lived on under the name Court Case Management System. The project was bungled into a half-billion-dollar fiasco by California’s Judicial Council and its 900-person bureaucracy, then called the Administrative Office of the Courts. The office developed such a bad reputation for profligacy within the state Legislature that the huge, San Francisco-based corps of civil servants was rebranded in 2014 as the council’s “staff.”
In explaining the name change, Justice Harry Hull said, “For years, there has been confusion over the relationship between the administrative office and the council; that the staff of the council was a separate entity and in some way independent of the council. It’s time to end that confusion.”
Nevertheless, the bureaucracy continued to operate in a secretive and largely unaccountable manner. Over the course of litigation, those paying the legal bills and using tactics that walked right up the line of good faith operated, like the Wizard of Oz, behind a curtain.
The old chief’s original idea of having California own its court software — instead of leasing it for millions of dollars from private companies — was itself a good idea for saving public funds. San Francisco Superior, under the leadership of Clerk Mike Yuen, bought its e-filing software with a modest, one-time payment of $342,000. Other states, like Hawaii and New York, also built their own software systems through modest turn-key contracts.
California’s Judicial Council and the bureaucracy operating beneath it, however, paid a private consulting company that milked the bureaucrats mercilessly with bills running around $242,000 per day, including weekends, to produce outdated software later abandoned by the Judicial Council and most of the local courts in California.
Along the way, around 2011, the Judicial Council set up a “CCMS Internal Committee,” whose job was to promote the new software. On the committee was a clerk named Kim Turner, who is now the court clerk in Mendocino.
In those early days, the CCMS movement found four acolytes, clerks who styled themselves as the “early adopters.” One of them was Ventura clerk Michael Planet who, like the other early adopters in Orange, San Diego and Sacramento, was a hardcore militant in opposition to traditional press access, imposing multi-day delays while his staff processed new filings into the CCMS docket system.
After years of letters and polite but result-less meetings with early adopters and top officials in California’s court bureaucracy, Courthouse News in 2011 filed a First Amendment action in federal court against Planet for withholding access to new court records until the news in them was dead.
In the same year, the old chief justice retired so that the outgoing Republican governor, Arnold Schwarzenegger, could appoint Tani Cantil-Sakauye as the new chief.
And in that same eventful year, when the Judicial Council was tossing bushels of public dollars at a software consultant, it doubled down on the project by hiring a top-tier national law firm to engage in ditch-by-ditch legal warfare with this news service. On separate terrain, the council and the press engaged in running battles in the Legislature and within the council’s rule-making power.
Through its Technology Committee — which had replaced the old CCMS Internal Committee — the council passed a series of rule changes that attempted to create two classes of public court filings, one for “filed” documents that were considered filed at the time of receipt, and one for “officially filed” documents which were considered filed only after a series of clerical tasks called processing but also called “acceptance.”
The press corps throughout California, including the Los Angeles Times, protested the proposed rule changes as a form of bureaucratic trickery, a rule-making legerdemain that had no other objective than to give clerks legal cover for holding back the new filings. The new definitions were passed by the council, chaired by the Chief Justice, without a single objection, while the Technology Committee chair assured his “friends” in the press that they would someday appreciate the new rules.
Meanwhile, on the legislative front, the indefatigable Judicial Council pushed a bill that would force reporters to pay ten dollars for each new public record they looked at — making traditional access impossible because the job of looking through the day’s stack of new complaints would cost hundreds of dollars. The press, including this news service, then engaged in a successful lobbying campaign to defeat the legislation.
Back in the main theatre of federal court, the parallel litigation by the Judicial Council’s lawyers resulted in three opinions by the Ninth Circuit Court of Appeals, referred to as Planet I, II, and III. Those three opinions and the long and winding path to win them are the foundation of Tuesday’s motion for $6.5 million in legal fees.
“The parties engaged in extensive discovery, including a dozen depositions, while Ventura Superior Court continued to deny that delays in access had even occurred. After months of discovery, CNS learned in January 2016 that VSC staff prepared weekly status reports chronicling significant delays in processing new complaints. Ultimately, 684 pages of these reports were belatedly produced,” said the fee memorandum filed Tuesday.
Through the course of lawsuits in California and other states over the First Amendment right of access, a common tactic was used by court officials which can best be described as hiding the ball. Officials in Ventura simply denied there were any access delays, essentially saying to Courthouse News, “prove it.” When all the while the clerk was keeping statistics on those delays.
A similar sequence of events took place during Courthouse News litigation in Virginia where defending clerks first denied any delays and then hid the electronic records that proved them. The Virginia Supreme Court’s Office of the Executive Secretary — the administrative equivalent of the council’s staff in California — then continued to hold back the records despite a federal court subpoena requesting them.
The existence of the electronic records in Virginia emerged only late in the deposition of the IT director for the executive secretary, just as the existence of delay reports only emerged in Ventura through the deposition of a court official there.
“I also believed, and continue to believe, that press reporting on the work of the courts is a central bulwark of our democracy, and that withholding timely press access to court filings undermines that reporting, and that shrouding that work ultimately damages our open form of government and the fundamental law on which that government is based,” said a declaration by the editor of this news service filed with the fee motion.
“From a personal viewpoint, given the organized, publicly funded strength of the state court bureaucracy and the declining number and strength of newspapers, I have at times in this litigation felt like the little Dutch boy in Hans Brinker, with his finger in the dike holding back the flood.”
The fee memorandum tells the story behind the story of the litigation by separating the long-running conflict into four rounds, with the fourth round scored two weeks ago by U.S. District Court Judge Dolly Gee. She was putting into effect last year’s Planet III by the Ninth Circuit, while Planet and the Judicial Council continued to fight, like Monty Python’s Black Knight, as one argument after another was lopped off.
“On remand, VSC continued to fight to the last, attempting to seize on what should be a routine procedural matter — implementing the appellate court’s mandate — to relitigate issues that either the Ninth Circuit already decided, or that the District Court already decided and which VSC failed to challenge on appeal,” said the fee memo.
At the heart of the great contest was traditional press access which consisted of news reporters looking through the new civil complaints as they crossed the clerk’s counter. While much in the state court filings was routine, the day’s stack also held nuggets of new stories that involved false advertising, public insults, dangerous pesticides, toxic pollution, public housing, political ads, and all manner of calamities from fires to earthquakes.
The declaration filed with the fee motion attested to the slow dawn of realization that an unchecked and unseen public bureaucracy was so committed to opposing that tradition that it would harness the power of the huge state of California and the billions of public dollars at its disposal to fight public access to the last ditch.
“Even considering my own long experience dealing with occasionally obdurate civil servants, the willingness of Mr. Planet and the California Judicial Council to spend public funds to pay a top-tier private firm to in essence throw everything including the kitchen sink against public access, to litigate, as Judge Henry Coke Morgan Jr. put it, ‘to the last breath,’ has been, from my perspective, a source of anger but also of wonder and amazement.”
In Round 4, decided at the end of January, Judge Gee found: “There is a qualified First Amendment right of timely access to newly filed civil complaints; This qualified right of timely access attaches when new complaints are received by a court, rather than after they are ‘processed’ — i.e., rather than after the performance of administrative tasks that follow the court’s receipt of a new complaint; This qualified right of timely access attaches on receipt regardless of whether courts use paper filing or e-filing systems.”
Grinding legal warfare for ten years was needed to get to that pristine conclusion. So an observer might think the war was just about over.
But on the same day the fee motion was filed, Courthouse News received a letter from the clerk in Mendocino Superior, Kim Turner, the former member of the CCMS Internal Committee.
In the letter, the clerk rejected a request for access — that Gee had ruled a First Amendment right — “when new complaints are received by a court.”
The clerk wrote, “The Court is not prepared to do this at this time, as it would give the press access to court records before they are accepted. We do not believe it is appropriate to share such filings before they become official court records.”