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Courthouse News Wins First Amendment Battle in 9th Circuit

In a unanimous and strongly worded opinion, the 9th Circuit ruled Monday that press access to state court records is a clear First Amendment issue that belongs in federal court. The ruling in favor of Courthouse News Service came as part of a challenge to the Ventura court clerk's imposition of long delays to access newly filed records.

"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," Judge Kim McLane Wardlaw wrote for the three-judge panel. "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."

Courthouse News had gone into federal court to challenge Ventura clerk Michael Planet over a policy followed by a minority of courts in California, delaying access to newly filed court records until official processing is completed. As a result, press access is delayed until the new matters are no longer news.

CNS argued that the delay violated the right of access to judicial proceedings guaranteed under the First Amendment. Moving for dismissal, the clerk claimed that the case was not about free speech at all but rather the state's clear discretion to withhold some information.

U.S. District Judge Manuel Real in Los Angeles then dismissed the complaint, agreeing with the clerk that he should abstain because the case involved a sensitive state issue. That decision was reversed Monday by the appellate court.

"Abstaining in this case portends particularly egregious damage to First Amendment rights because it stifles the 'free discussion of governmental affairs' that the First Amendment exists to protect," the unanimous 9th Circuit ruling states. "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 complaint the Ventura County Superior Court withholds."

In a 32-page opinion, Wardlaw said Courthouse News should not be left to wait on when or whether a California state court decided to take up the First Amendment issue.

"We decline to leave CNS and those who rely on its reporting twisting in the wind while the state courts address a different question entirely - the interpretation of a state law that itself recognizes the importance of public access to judicial proceedings," Wardlaw wrote.

Representing CNS, Rachel Matteo-Boehm with Bryan Cave rejected the argument made by the clerk's lawyer, Robert Naeve with Jones Day, who said the case had nothing to do with free expression.

"This was definitely a case involving free expression," Matteo-Boehm said in an interview. "You can't talk about your government unless you know what your government is doing. The right of access is necessary to allow the public to discuss what the courts are doing."

Naeve, who represents the Ventura clerk and the overarching bureaucracy in California's Administrative Office of the Courts, did not return a request for comment.

The background to the litigation is tied to policies of the administrative office, an 800-strong, San Francisco-based bureaucracy that has been criticized by the press for its opposition to government transparency on a host of matters.


The press in California for decades enjoyed prompt, same-day access to newly filed matters in the state's big courts, a frequent source of news. That changed in a few courts, however, when the central bureaucracy started pushing a software project called the Court Case Management System that cost the public more than a half-billion-dollars before it was abandoned.

A small number of courts, with clerks closely tied to the central bureaucracy, adopted the cumbersome and labor-intensive CCMS software. They included the courts in Ventura, Orange County and San Diego.

Pursuing a policy backed by the bureaucracy, all three local courts refused to give news reporters access to newly filed matters until after they were officially processed, which took days and sometimes weeks.

That change in access policy killed news reporting on new filings for most journalists and newspapers, CNS editor Bill Girdner said.

"Ventura County, supported by the Administrative Office of the Courts, is delaying access to newly filed complaints, and that delay is killing the news value of the coverage and ultimately damaging the First Amendment rights of the press and of the public," Girdner said in an interview.

In Monday's ruling, the 9th Circuit panel made up of Wardlaw, Judge Mary Murguia and Judge John Noonan used sweeping and powerful language to say that such a discussion clearly involves the First Amendment and should be heard in a federal court. CNS was joined in its Ninth Circuit appeal by the Reporters Committee for Freedom of the Press.

"Open government has been a hallmark of our democracy since our nation's founding," Wardlaw wrote, quoting an earlier 9th Circuit ruling. "Indeed, this transparency has made possible the vital work of journalists who have strengthened our government by exposing its flaws."

"The news media's right to judicial proceedings is essential not only to its free expression but also to the public's," she added. "We have observed that the news media, when asserting the right of access, 'are surrogates for the public. The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.'"

Because the underlying ruling by Judge Real said the federal courts should not get involved in the case - should "abstain" from hearing it - the 9th Circuit panel needed to address that issue.

"CNS's First Amendment right of access claim falls within the general rule against abstaining," the opinion states. "CNS's right of access claim implicates the same fundamental First Amendment interests as a free expression claim, and it equally commands the respect and attention of the federal courts."

A common argument that state courts resisting access make is to say the volume of paperwork is so overwhelming that it would create a huge amount of extra work to let reporters look at new cases on the day they are filed. The clerk's lawyer Naeve, for example, told the 9th Circuit panel in oral arguments that "no court" provides the press with same-day access.

That argument was contradicted by the current policy of all four federal courts in California and big state courts such as Los Angeles and San Francisco, as well as the smaller courts in Fresno, Bakersfield, Contra Costa, San Mateo and Solano. All of those courts provide journalists with access to the great majority of new actions at the end of the day they are filed.

In Monday's ruling, Wardlaw noted the declarations provided by Courthouse News employees, including CNS reporter Julianna Krolak with 12 years of experience covering the Ventura court, who described simple and practical means for journalists to review new filings.

"The Ventura County Superior Court has available a variety of measures to comply with an injunction granting CNS all or part of the relief requested," Wardlaw wrote. "For instance, the court could provide reporters with a key to a room where new complaints are placed in boxes for review before being processed, as does the Los Angeles Division of the U.S. District for the Central District of California.

"To permit same day access, the Ventura County Superior 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."

Such simple remedies would not inappropriately tie up the federal courts in ongoing supervision of state court affairs, and therefore it was wrong to abstain in the case, the court found.

"We also trust that the Ventura County Superior Court would comply with any federal injunction requiring it to make unlimited civil complaints available within a specified time period," Wardlaw wrote.

The opinion concludes: "We reverse the judgment below and remand so that the First Amendment issues presented by this case may be adjudicated on the merits in federal court, where they belong."

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