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CNS Files for Judgment Against|Clerk in First Amendment Case

Lawyers for Courthouse News filed a summary judgment motion Monday asking a federal judge in Los Angeles for an order telling Ventura's court clerk to let journalists see new civil complaints on the day they come across the counter, a longstanding tradition in the courts of California and throughout the nation.

The case has been fought tooth and nail by California's central court bureaucracy, which picked the clerk's lawyers. Since it was filed in 2011, the case has twice gone up to the Ninth Circuit Court of Appeals which has twice ruled in favor of Courthouse News.

"This is a First Amendment case," wrote Ninth Circuit Judge Kim McLane Wardlaw on the first appeal. "The news media's right of access to judicial proceedings is essential not only to its own free expression, but also to the public's."

"It is thus well-established that the right of access to public records and proceedings is 'necessary to the enjoyment' of the right to free speech," said the judge's 32-page opinion.

A host of news organizations, including the Los Angeles Times and The New York Times, supported the CNS position during those appeals.

The first Ninth Circuit opinion by Wardlaw, joined by judges Mary Murguia and John Noonan, reversed a lower court dismissal of the case. After a second dismissal and a second reversal, the case was randomly reassigned to Judge James Otero who has kept the case moving on a strict schedule.

"From time out of mind, journalists could come to the courthouse to review the new complaints filed that day," said CNS's argument in support of summary judgment, using a traditional legal expression for the past beyond memory.

"Acting as a surrogate for the public, members of the press would examine the complaints to determine which may be of interest to their readers, then write reports about those that seem newsworthy for the newspapers distributed that afternoon or the next morning," said the points and authorities filed Monday.

Courthouse News is represented by Rachel Matteo-Boehm, Roger Myers, Jonathan Fetterly and Leila Knox with Bryan Cave.

The tradition of reviewing the new filings at the end of the day is a standard part of a journalist's job when working the court beat. The tradition has been in place in state and federal courts in Los Angeles, San Francisco, Chicago, New York, Houston and any city with a strong newspaper, including Ventura, which formerly had a vibrant local paper, the Ventura County Star-Free Press.

Robert Naeve with Jones Day, one of the lawyers representing Ventura's clerk, has variously argued that there is no tradition of review by journalists, that no California courts allow such a review and that that a new complaint is "purely private" until it is "processed," an amorphous term that encompasses a range of tasks that often are not finished until days or weeks after a new case is received.

In Ventura Superior in particular, the complaints were withheld for days and weeks. Internal memos revealed delays of up to 34 days before processing even started. Court officials characterized that delay as "within reason."

Steering Committee Cadre

Journalists were required to wait because the clerk takes the position that the complaints are not public until his staff has done the processing. "Until a new unlimited civil complaint is processed, it's not a public record," said Ventura clerk Michael Planet in a deposition earlier this year.

His stance is shared by a small set of California court clerks who were closely allied with the former Administrative Office of the Courts. The office was frequently in conflict with the Legislature and attacked as spendthrift and bloated by hundreds of California trial judges.

So the bureaucrats rebranded themselves as "the staff" of the Judicial Council, a group of judges and clerks who approve rule changes. But the bureaucracy's power and personnel remain largely unchanged.

Allied with the central bureaucrats were the local clerks from Ventura, Orange, San Diego and Sacramento. They formed the original 2002 steering committee for a software project called the Court Case Management System which was supposed to lead to e-filing. Funded by the central bureaucracy and using public money, the CCMS project drained more than a half-billion dollars from the state's coffers before it was shut down under pressure from the Legislature.

After they joined the steering committee, all four local clerks took a militant stance on press access, cutting off existing channels for same-day review and then withholding the new complaints until they were processed. Because the CCMS system is unusually labor-intensive, the processing inevitably took a substantial amount of time and backlogs were common.

After CNS filed its complaint in 2011, the current and former clerks from the same courts, Alan Carlson in Orange County, Michael Roddy in San Diego and the retired clerk from Sacramento, Dennis Jones, sent emails to Planet in Ventura, commenting and at one point advising on the defense of the CNS action.

In turn the central office bureaucrats drafted e-filing rules that gave the clerks cover when they withheld new filings from the press.

Those rules invented a new category for public documents those that were "officially filed." The "officially filed" documents had to be "reviewed" and "processed." The rules could then be used by local clerks to justify withholding new complaints until long after they crossed the counter.

Despite written objections from the Los Angeles Times and the California Newspaper Publishers Association, among many others in the press corps, the Judicial Council passed the controversial rules on a unanimous vote with virtually no debate. Most measures pass the council in the same manner.

Old Bones of Access

The Ventura litigation has lasted more than four years, despite the fact that it is easy to provide same-day access to the new complaints. In Ventura's downtown courthouse, for example, all new unlimited civil complaints end up in one stack on one desk at the end of the day. That stack is what journalists traditionally look through in order to cull the news.

"To permit same day access, the Ventura County Superior Court 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," wrote Wardlaw in the first Ninth Circuit opinion.

Ironically, Ventura used to be among those many courts that provide journalists with same-day access to the new complaints. The old bones of that access could be seen up until recently, in the form of a "press bin" placed by the Ventura clerk's staff at the intake counter.

Press bins placed on top of intake counters are common in state and federal courts, providing the press with access to the day's new filings. Included with Monday's summary judgment motion is a declaration by a former reporter for the Ventura County Star-Free Press who used to check the press bin two decades ago when the newspaper was strong and the press bin served its traditional purpose.

"I do not recall a single instance during the entire six-year period I covered the Ventura Superior Court that I was unable to view a complaint on the same day it was received for filing as long as I was there when the court closed," said reporter Jeff Sturgeon.

In its court papers, CNS argues that press access is a matter of will. That contention is illustrated by the state court in Sacramento where new leadership reversed the old policy of withholding press access and in a matter of days began providing journalists with a high level of same-day access to the new actions well before they were processed.

As part of a broad effort to justify withholding access, some of the steering committee clerks, including Planet, have also tried to alter the definition of "filing," which is traditionally and commonly understood to mean the act of passing a document across the clerk's counter. They argue that a case is not "filed" until it is processed or "accepted" by the clerk, no matter how long that takes.

But the effort to redefine the act of filing is belied by the practice of backdating the file date on new complaints. When processing is completed, Planet backdates the file date to the day the complaint arrived in his office, showing that the day the complaint crossed the counter is still what counts.

Black Hole of News

The policy of withholding the newly filed complaints from the press creates a black hole, where a new complaint disappears into the clerk's control and cannot be seen by the press until it emerges stamped, jacketed, and processed into CCMS software. It is then retroactively declared "filed" and only then provided to journalists for review.

By that point, the new complaint is no longer new, and no longer news.

For example, the Ventura clerk withheld a suit by an agricultural business named Rancho Camulos challenging a Ventura County project to build a 32-mile path for hiking and bicycle riding.

The original Rancho Camulos was a stop on California's Camino Real, the historic trail that linked California's missions. Rancho Camulos was also the setting for one of the most famous novels of its time, "Ramona" by Helen Hunt Jackson published in 1884. The complaint in that case could easily have been turned into a national feature story.

But it was withheld from the press for three weeks.

Another case filed by the venerable Los Angeles-based firm of Manatt Phelps challenged the takeover of a private water company in Ojai through the use of eminent domain. The complaint said the water authority doing the takeover planned to pay for it through a special tax on every home owner in Ojai, a story of clear news interest.

But that complaint was withheld for four weeks.

In the first Ninth Circuit opinion in the case, Judge Wardlaw wrote, "The purpose of CNS's effort to timely access filed unlimited civil complaints is to report on whatever newsworthy content they contain, and CNS cannot report on complaints the Ventura County Superior Court withholds."

In today's summary judgment motion, the Bryan Cave lawyers conclude with a quote from an earlier Ninth Circuit opinion that said, "Where the precious First Amendment right of freedom of the press is at issue, the prevention of access is, each day, an irreparable injury: the ephemeral opportunity to present one's report to an interested audience is lost and the next day's opportunity is different."

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