Court Access Press Fight Heard in 9th Circuit

     In an animated 9th Circuit hearing Wednesday, Judge Kim Wardlaw pursued a lawyer for California’s courts over his argument that press access involves a sensitive matter of state policy and federal courts should not get involved.
     During the same hearing, Judge John Noonan sharply questioned the lawyer for the press, casting doubt on the importance of prompt press access to new court complaints.
     For the press, Rachel Matteo-Boehm with Bryan Cave argued that First Amendment issues clearly belong in federal court. She then pointed to a 9th Circuit ruling that said a 48-hour delay in access to court documents violates the First Amendment.
     The underlying case involved the Ventura county clerk’s refusal to provide the press with access to new complaints until they have been entered into a case management system, a set of tasks that take more than 48 hours on average.
     Courthouse News Service filed the complaint two years ago and U.S. District Court Judge Manuel Real quickly tossed it from his court, saying federal judges should not entertain such disputes. To justify the type of abstention invoked by Real, the underlying dispute must involve a sensitive matter of state policy.
     Courthouse News and the Reporters Committee for Freedom of the Press appealed the ruling to the Ninth Circuit.
     “Tell me how the timing of when a reporter gets to see the complaint implicates an important, sensitive state policy,” asked Wardlaw during Wednesday’s hearing.
     For Ventura’s clerk, Robert Naeve with Jones Day answered that Ventura’s court is short on money and runs on a deficit. “They don’t accept filings anymore,” he said.
     Ventura in fact continues to accept filings, including new complaints.
     Wardlaw said such argument goes to the merits, which were never reached in the district court. “I don’t think that’s a basis for Judge Real to abstain in this case,” she said.
     Reviewing the day’s new filings at the end of the day is a traditional part of beat coverage by a courthouse reporter. The tradition is respected in all the federal courts in California and a host of state superior courts in California and throughout the nation.
     In their briefs, lawyers for the press pointed to a ruling by U.S. District Court Judge Melinda Harmon in Texas who ordered the court clerk in Houston to provide the press with same-day access to all new civil complaints.
     Wednesday’s arguments were heard in Ninth Circuit’s Pasadena courthouse, set among well-tended lawns and flower gardens, with ornate moldings in the dark courtrooms, early California scenes on murals in meeting rooms and American Indian motifs carved into the paneling of lecterns and the bench.
     During the morning hearing, Wardlaw noted that the other courts in California are able to provide same-day access to journalists reviewing the new matters at a courthouse.
     The lawyer for Ventura incorrectly answered the judge, saying no court in California provides same-day access.
     In fact, courts large and small in California provide the press with same-day access, including superior courts in Los Angeles, San Francisco, Oakland, Contra Costa, Fresno and Bakersfield. In addition, all four federal districts in California provide journalists with same-day access to new matters.
     Ventura, on the other hand, has hewed to the policy of the central authority of California’s Administrative Office of the Courts, moving early, for example, to adopt cumbersome software called the Court Case Management System. Ventura’s clerk has since imposed a policy that says journalists cannot review the new cases until they are entered into CCMS.
     The resulting delay was the focus of questions from the third member of the panel, Judge Mary Marguia.
     “How long is that taking,” she asked. “Do you have any data,”
     Press lawyer Matteo-Boehm answered that a large majority take two days or more, with individual cases held weeks before the press can see them.
     Delays in Ventura have in fact worsened since those statistics were gathered. The current delay averages three days.
     “We are trying to figure out the reasonableness of this,” said Murguia.
     But the morning’s most sustained grilling came from Wardlaw.
     Over a series of more than a dozen questions, she pursued the lawyer for Ventura, including a request that he stop interrupting her, on the central issue of whether press access to court documents is such a sensitive matter of state policy that federal courts should abstain from hearing a challenge to restrictions on access.
     She asked, for example, what it would cost simply to allow reporters to see “the intake box.” Courthouse News has repeatedly argued that it costs no more than asking administrators to get out of the way.
     “This is a First Amendment case,” she added, noting that restrictions of time, place and manner can be applied to an injunction that would order access.
     Wardlaw rejected Naeve’s citation of a case that involved the election of state judges, saying that the matter of providing access to new complaints is clearly not comparable.
     “I don’t see why it’s a sensitive issue to make a complaint available,” said Wardlaw.
     On the other side of the argument, Judge Noonan challenged the lawyer for the press, doubting the interest in newly filed actions.
     “To be candid with you, I can’t imagine people being interested in this,” said Noonan. “Who wants to know.”
     Matteo-Boehm pointed to the subscribers, that include most of the major law firms in the state and and media outlets including the Los Angeles Times, as testimony to the interest in new litigation.
     “We can’t report on it unless we know about it,” said the lawyer.
     Noonan moved to the issue of timing, asking why a delay of two, three or four days mattered. He nearly shouted, “What difference does it make!”
     “It matters because news is news when it happens,” Matteo-Boehm replied.
     Reporting on new litigation is a common subject of newspaper reporting, from major actions such as the recent government filing against financial reporting agencies over the mortgage meltdown to local suits over the environment, local land development or deadly accidents.
     In an earlier hearing, Noonan had referred to an article in the New York Times on violence on Indian reservations. Times reporters report on events of that same day for tomorrow’s newspaper, including election results, sports outcomes and court proceedings.
     The 9th Circuit itself publishes promptly on its own proceedings, for example, posting an audio recording of the hearing in Courthouse News v. Ventura by the end of the same day it was argued, much as reporters seek to review newly filed actions by the end of the same day they are filed.
     
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