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Check for $2.9 million sent by California Judicial Council to Courthouse News

The top brass of California’s judicial bureaucracy fought this news service over public access for ten years. They lost and now must pay the price of litigation.

PASADENA, Calif. (CN) — A check from the California Judicial Council for $2.9 million arrived at the Courthouse News offices Friday paying for attorney fees spent in a decade-long battle over public access.

The council lost that long fight and was required by court order to pay the news service’s attorney fees. It had backed a local court clerk in Ventura who was an early acolyte of the disastrous effort by the council and the former chief justice to create homegrown software for electronic filing.

While other states such as New York, Hawaii and Connecticut have successfully done the same, California’s judicial leadership at the time racked up a half-billion-dollar bill and then abandoned the project.

In the end, the clerk, Michael Planet, stayed with paper filing. But he adopted a policy, labeled by a judge midway through the litigation as “no-access-before-process,” that blocked press access to complaints until they were docketed or, the modern term, “processed.”

But the clerical work stacked up and the news in the complaints was held up. The council then doubled down in support of the clerk, putting in place court rules that gave him cover by saying the new complaints were not really official until they were in the docket.

The council also hired the heavy-duty litigation firm of Jones Day to fight against this news service with all the scorched-earth defenses tied to high-stakes commercial contests. Those tactics contributed to the steadily increasing legal bill on the side of this news service, which was represented by the Bryan Cave law firm.

Filed in 2011, the saga of Courthouse News v. Planet included three trips to the Ninth Circuit. The last one, handed down in 2020, is referred to as Planet III, and it said the First Amendment right of access attaches to new complaints when they are filed.

This matched up with an age-old tradition in American courts where news reporters checked the new complaints at the clerk’s counter. The complaints were in a box or bin or cart where the intake clerks set them as soon as they came across the counter. Reporters checked the box at various times during the day but most often around closing time to make sure they saw all the day’s new cases. 

The opening line of the Planet III opinion, written by Judge Kim Wardlaw, says, “The peculiar value of news is in the spreading of it while it is fresh.”

She then added, “The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press. These values hold especially true where, as here, the impetus for CNS’ efforts to obtain newly filed complaints is its interest in timely reporting on their contents.”

That understanding has been shared by a number of federal judges, including Judge Henry Coke Morgan Jr. in the Eastern District of Virginia who said from the bench: “I think that the point the plaintiff's making is that it has its news value as soon as it happens. If you don't get it when it's fresh, it's like stale bread.”

His ruling against two Virginia clerks was affirmed in Fourth Circuit opinion by Judge Diana Gribbon Motz who rejected the Virginia clerks’ argument that contemporaneous access was not required. “This argument ignores the immediate consequences precipitated by filing a complaint, consequences that the public must promptly understand if it is to help ‘improve the quality of the judicial system by subjecting it to the cleansing effects of exposure and public accountability.’”

The Virginia litigation, which included a four-day trial before Judge Morgan, resulted in a check sent by the Virginia court administrator to Courthouse News for $2.4 million. At the time it was a record fee award for Courthouse News, but it has been topped by Friday’s seven-figure check from California’s Judicial Council.

Those amounts, however, seem to have had little effect on the administrative bureaucracy of other courts within the Fourth and Ninth circuits. State court administrators in Oregon and Idaho, both within the Ninth Circuit, are brazenly defending no-access-before-process policies, despite an inescapable ruling from the circuit that says the right of access attaches when a new complaint is received.

In California itself, despite the Planet ruling and the subsequent attorney fee award, a group of court clerks, including those in Merced and Stanislaus counties in the Central Valley, continue to block access to new complaints until they are processed into the docket. They are now defending a First Amendment action which is steadily racking up attorney bills.

And despite the Fourth Circuit decision and subsequent fee award, the court administrator in Maryland — which is within the Fourth Circuit — is nevertheless restricting access to new complaints until they are processed and the news has gone stale. Courthouse News filed a First Amendment action against the Maryland administrator earlier this week.

But the mother of all those cases in terms of its length and expense is the Planet litigation in California. The hotly contested case traveled up and down the appellate ladder three times over the course of a decade, racking up bills every step of the way.

About midway through the long-running legal fight, U.S. District Judge David Otero ruled in favor of Courthouse News on a summary judgment motion, saying in 2016, “Planet does not meaningfully dispute that timing is a critical element of a story's newsworthiness… It would make little sense to restrict the media's ability to monitor until after court personnel have had an opportunity to delay providing access to the requested complaints.”

The Judicial Council disagreed and appealed to the Ninth Circuit.

“Our decision reflects the First Amendment’s 'role . . . in securing and fostering our republican system of self-government' through informed and robust public debate," wrote Wardlaw in Planet III. "The guarding of the freedom of public discussion is a preliminary step in the unending attempt of our nation to be intelligent about its own purposes."

After the Ninth Circuit sent the case back to the trial court for final disposition, U.S. District Judge Dolly Gee in 2021 issued an order that said, “Planet is hereby permanently enjoined from refusing (a) to make newly filed unlimited civil complaints and their associated exhibits available to the public and press until after such complaints and associated exhibits are ‘processed,’ regardless of whether such complaints are filed in paper form or e-filed, and (b) to make such complaints and exhibits accessible to the public and press in a timely manner from the moment they are received by the court.”

Earlier this year, she awarded attorney fees in favor of Courthouse News.

With the delivery on Friday of the $2.9 million check from the Judicial Council came a note from partner Erica Reilley at the Jones Day firm. “This payment concludes the litigation in all respects.”

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