Ninth Circuit Hears Clash Over First Amendment Access by Press Corps

PASADENA, Calif. (CN) – In a First Amendment case over press access, a Ninth Circuit panel on Thursday closely questioned lawyers for California’s court administrators who are appealing a lower court order that said the right of timely access to new civil complaints attaches when the court receives them.

Judge James Otero in the U.S. District Court in Los Angeles ruled in 2016 that Ventura’s court clerk could not justify withholding the new complaints. Backed up by the administrative superstructure of California’s courts, the Judicial Council, the clerk appealed that decision.

At a hearing Thursday morning in the Ninth Circuit’s historic Pasadena courthouse, a staff lawyer for the Reporters Committee for Freedom of the Press spoke on behalf of national media organizations including the Associated Press, Wall Street Journal and the Los Angeles Times.  She urged the panel of appellate judges to consider the importance of traditional press access to new complaints on the day they are filed.

“News organizations rely on the First Amendment right of timely access when they send their reporters to the courthouses around the country to access newly filed complaints so that they may report on them to the public,” said Caitlin Vogus, representing the national media.

Sitting high on the bench in the expansive and ornate Courtroom One, arguments were heard by Ninth Circuit judges Kim Wardlaw, Mary Murguia and Randy Smith.

Over the course of the morning’s arguments, the lawyer representing the clerk questioned whether a First Amendment right of access even applies to new civil complaints, renewing an old argument that the press does not have a right to see a new complaint until a judge has acted on it.

“We’ve already decided that,” said Judge Wardlaw.

“Have we decided that, that is the question,” said Judge Smith.

On behalf of the Judicial Council and the clerk, Robert Naeve with Jones Day answered, “Do we understand that there is a timeliness requirement, yes.” But he said there was doubt as to “when that attached.”

“You’re arguing your point now that it doesn’t attach until some judge has touched it,” Wardlaw shot back. “That is clearly wrong.”


The case was brought in 2011 by Courthouse News against Michael Planet, the court clerk in Ventura Superior Court, and is now on its third trip to the Ninth Circuit. The issue at the heart of the case is whether the clerk can justify withholding press access to the day’s new civil complaints for administrative processing, often called “docketing.”

That policy runs contrary to longstanding tradition where news reporters reviewed the new cases when they crossed the clerk’s counter, ahead of docketing.

In the lower court, Otero ruled in 2016 that a timely right of access attaches to the new complaints when they are received. In the course of that 30-page order, he noted that despite a new scanning policy, the court was still holding back roughly one third of the cases.

“Staff at Ventura Superior Court acknowledged these delays, as evidenced by internal memoranda that identify backlogs ranging from several days to several weeks,” said Otero in his ruling.

In addition, a declaration submitted by Courthouse News pointed to the varying rates of access when the staff is running behind, noting that over the course of three days leading up to Otero’s 2016 decision, only 45 percent of the new complaints were made available to the press on the day of receipt.

“Those bad days come often,” said the declaration at the time.

From Otero’s 2016 opinion.

In the Ninth Circuit, Murguia expressed concern with the varying statistics presented by the two sides. “I don’t understand how the data can be that off. I don’t know if it’s inaccurate or not. I’m just trying to get to the bottom of it.”

The Ventura clerk, through his lawyers, claimed that he was making 97 percent of the new complaints available on the day they were filed. But his statistic included a large set of afternoon complaints that were made available in a locked room, after reporters were kicked out.

Otero addressed the disparity in numbers in his original ruling, and found that it need not be resolved because it was clear the clerk was cutting off access in the mid-afternoon.

“The following two facts are undisputed: (1) even though VSC’s Records and Civil Departments close their doors to the public at 3:00 p.m., the courthouse itself remains open to the public, who can continue to file new complaints, until at least 4:30 p.m.; and (2) the Records Department requires all members of the public, including CNS’s reporter, to leave once the last member of the public is helped.”

Otero in the U.S. District Court in Los Angeles concluded that clerk Planet could not justify that denial of access.

“Planet has not provided any reason,” he wrote, “much less one that is ‘compelling,’ why VSC should be permitted to preclude members of the public and the press from viewing newly filed complaints that happen to be scanned after the Records Department – the sole area in which one can read such scanned documents – shuts its doors.”

Access before docketing

Courtroom One in the Pasadena courthouse is adorned with large, framed, color photographs of natural landscapes. Across from the courtroom is a vast library with floor to ceiling windows that look out on a well-tended garden and Pasadena’s Arroyo Seco Canyon.

In that idyllic setting, Murguia pursued the nitty gritty of the filing process in trial courts. She asked the lawyer for Courthouse News whether the clerk’s staff size should be taken into account. “Doesn’t Ventura County have to docket those physical files at least?”

“Docketing and providing timely access are not mutually exclusive,” answered Rachel Matteo-Boehm of Bryan Cave. “It need not precede access.”

Trial courts traditionally have provided journalists with access to new complaints after they cross the counter when new complaints are date stamped and a filing fee is paid. Docketing, which involves entering detailed information about the case into a case management system, takes place well after intake.

For decades, the federal court in Los Angeles, for example, provided the press with access to paper complaints on the day they were filed, a fact also pointed out in the declarations in the case. That access took place before the new cases were docketed, which often took a couple days.

In the era of electronic filing, the same court makes the new complaints available for public and press review the moment they are received, before any processing or docketing, as do all four federal district courts in California.

The Ninth Circuit judges also asked the lawyers before them about the appropriate test for deciding whether clerk Planet’s policy violated the First Amendment, whether it should be one that requires an overriding governmental interest for the withholding policy or another test that looks at the time, place and manner of the restriction.

“The District Court found that given the evidence in this case, Planet failed to meet the burden of demonstrating that taking the time for processing was essential to preserve higher values or is narrowly tailored to serve a substantial government interest,” said Wardlaw.

“That is in fact the overriding interest test,” answered Vogus, a staff lawyer with the reporter’s committee. “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. That is the higher test that the Supreme Court has said applies when the First Amendment applies.”

Another issue the judges focused on was the effect of Otero’s order. Since his ruling, most weeks, reporters have seen 100 percent of the new complaints in Ventura Superior on the day of filing. Occasionally, there is an exception and that percentage drops slightly.

Tracking of public access to court filings in Ventura County in early June 2018.

“Has the sky fallen,” Murguia asked the clerk’s lawyer.

“It’s actually no different, the same procedure happens, except the hours are different,” said Naeve.

“Why isn’t that the most reasonable solution,” asked Wardlaw.

Attorney Fees

The second issue on appeal in the Ventura case is the question of attorney fees. A news organization that wins a First Amendment case is normally entitled to recoup attorney fees spent in successfully asserting the First Amendment against a government entity fighting against access and paying for that fight with public funds.

In the lower court, Judge Otero lopped 60 percent off the $5 million attorney fee paid by Courthouse News for what, at the time, was already a five-year legal battle. The judge reduced the fee to roughly $2 million.

“It seems to me you’ve won substantially all the victory that you could get out of this case,” Wardlaw said to the Courthouse News lawyer. “You established the right of access, you got them to change their policy twice, don’t you want to say that for the purposes of your fee?”

“We are saying we like Judge Otero’s opinion,” said Matteo-Boehm for Courthouse News, “and we are asking that it be affirmed.”

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