LOS ANGELES (CN) – In long-running litigation over press access in Ventura, U.S. District Judge James Otero has ruled in favor of the press on a series of key points. The judge found that the right to review a new complaint attaches as soon as it is received by the clerk, and he rejected the clerk’s policy of withholding access until the complaint is processed.
Otero ordered the clerk to make the complaints and exhibits “accessible by the public and press in a timely manner from the moment they are received by the court.”
Ruling on a summary judgment motion filed by Courthouse News, the judge also prohibited the clerk from withholding those documents while they are processed and entered into the Court Case Management System.
The cumbersome and exorbitantly expensive CCMS software has been an albatross around the neck of the court bureaucracy in California for more than a decade. Formerly known as the Administrative Office of the Courts, the bureaucracy now calls itself “the staff” of the Judicial Council, the rule-making body for California’s courts.
The staff has been deeply involved in the Ventura litigation, backing the clerk’s position, and pursuing a die-hard resistance to press access. At great public expense, they have employed a white-shoe law firm in order to fight the press through two trips to the U.S. Ninth Circuit Court of Appeals, which have twice resulted in opinions in favor of the press.
With the case back in the federal district court in Los Angeles, Courthouse News Service and Ventura Clerk Michael Planet filed dueling motions for summary judgment, completing an extensive set of briefs in early April.
In his ruling issued late last week, Otero granted the main elements of CNS’s summary judgment motion, although he did not find an absolute “same-day” access right under the First Amendment. He also rejected the clerk’s competing motion in its entirety.
“The Court concludes that CNS has succeeded in establishing a qualified First Amendment right of timely access to such complaints that attaches when new complaints are received by a court,” wrote the judge, setting out the key elements of his finding in bold type.
CNS is represented by Rachel Matteo-Boehm, Roger Myers, Jonathan Fetterly and Leila Knox with Bryan Cave. Through roughly 30 declarations by reporters, they showed that many courts, federal and state, have traditionally allowed the press to review the day’s newly filed complaints at the end of the day.
For example, a journalist who had worked for the Ventura Star-Free Press submitted a declaration saying that in years past Ventura Superior Court kept a media box at the intake counter, holding the day’s new civil complaints.
“The Court finds that civil complaints have historically been made available to the public and the press soon after they are received by the court,” said Otero’s 30-page order.
Access Before Processing
Through depositions taken by Matteo-Boehm, the CNS lawyers also demonstrated the Ventura clerk’s belief that new complaints were not public until after they were processed, which took days, sometimes weeks. While the case was in progress, the Judicial Council staff slipped a set of definitions into new e-filing rules that backed up the clerk by saying a filing was not “official” until it was processed.
CNS argued that such a policy allowed the clerk to block press access for an arbitrary and unlimited amount of time.
Referring to Ventura Superior as VSC, he wrote, “Under VSC’s processing policy, a CNS reporter interested in seeing a newly filed complaint considered ‘newsworthy’ would be subject to the whims and turnaround times of Planet and his inferiors, who could reject such access on the departmental policy that a complaint is not a ‘public record’ until it is ‘processed.'”
The judge unequivocally rejected that policy, ruling that the press is entitled to review the new complaints before they are processed rather than afterwards. “The Court concludes that the qualified right of timely access to newly filed complaints arises when a complaint is received by a court, rather than after it is ‘processed.'”
Otero then ordered the clerk to provide access to the press ahead of processing, a key request by CNS and the press organizations acting as amicus.
“The Court PROHIBITS Planet, in his official capacity as Court Executive Officer and Clerk of the Ventura County Superior Court, from refusing to make newly filed unlimited civil complaints and exhibits attached thereto available until after such complaints and associated exhibits are ‘processed’ — i.e., the performance of administrative tasks that follow the court’s receipt of a new complaint — and ORDERS that Planet make such complaints and associated exhibits accessible by the public and press in a timely manner from the moment they are received by the court.”
The case has been running for nearly five years, costing CNS, and in all likelihood its opponents, millions of dollars in attorney fees. On the first trip up to the Ninth Circuit, Judge Kim Wardlaw affirmed the importance of press access, but could not rule on factual questions that had not yet been decided in the lower court.
“Open government has been a hallmark of our democracy since our nation’s founding,” wrote Wardlaw in the first ruling, generally referred to as Planet I. “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.”
Wardlaw was joined by Ninth Circuit judges Mary Murguia and John Noonan.
A host of news organizations have supported the CNS position by submitting amicus briefs.
They include The Associated Press, The American Society of News Editors, Association of Alternative News Media, Dow Jones & Company, The E.W. Scripps Company, First Amendment Coalition, First Look Media Works, The McClatchy Company, New England First Amendment Coalition, News Corp, National Press Photographers Association and Radio Television Digital News Association.
Despite the rulings in the Ninth Circuit, and the united front from the press, the clerk and the Judicial Council staff battled on. The lawyers representing the clerk and the council are Erica Reilley and Charlotte Wasserstein from Jones Day, one of the largest and most profitable firms in the nation, and Frederick Hayes with his own office.
Their team argued that the case should be dismissed because it is moot, based on the clerk’s current policy of scanning new complaints on the day they are filed. In their recent summary judgment briefs, the Jones Day lawyers repeatedly claimed the clerk was providing “97%” same-day access.
What they did not explain was that the clerk puts the scans on a computer in his records room and then closes that room at 3:00 p.m., while he continues to accept complaints up until 4:30 p.m. In essence the clerk is making the afternoon complaints available in a room that is already closed.
“Planet’s declaration that provides the basis for his 97% figure neither takes account of the fact that viewing terminals close at 3 p.m. while the courthouse does not close until at least 4:30 p.m. nor reflects Planet’s policy of ‘backdating’ the filed date to the date a complaint is received,” wrote Otero.
The reference to backdating is based on the clerk’s policy of waiting until a new complaint is entered into CCMS and then backdating the file stamp to the day the complaint was received. The clerk argued that a new complaint is not considered “filed” until it is processed and backdated.
In rejecting the mootness argument, Otero said the clerk could easily revert to his old policy. He cited a Ninth Circuit ruling from last year where a policy exception was analagous to Ventura’s scanning policy.
“The ‘suspicious’ nature of Ventura County Superior Court ‘s adoption of the Scanning Policy — ie. after receiving an adverse ruling from the Ninth Circuit in Planet I — undercuts the likelihood that Planet can ‘show that it is absolutely clear that he could not reasonably be expected to revoke the exception’.”
In short order, Otero also waved off a set of excuses commonly employed by clerks fighting press access that had also been invoked by clerk Planet in Ventura.
Planet claimed that he must first process the complaints because of “confidentiality.” The judge noted that protecting privacy is the sole duty of the filing party, and observed that the clerk does not review the complaints for confidential information.
Similarly, the clerk claimed that he must process to ensure “accuracy” in the docketing, which Otero said was an “illusory” argument, because the accuracy of the clerk’s work was unrelated to press access.
Planet also argued he must “maintain the integrity” of the file, but Otero noted that the clerk could not provide an example of a situation where providing access to a journalist could result in damage to the file.
In the final section of his order, the judge made it clear that it applies to e-filing, as well as paper filing.
A central point advanced by the CNS lawyers was that the Ventura clerk wants to move from paper filing to e-filing, which would allow him to abandon the scanning policy and renew the delays.
Two big courts in Southern California, Orange County and San Diego, already accept e-filing and both those courts withhold press access until after processing. Like Ventura, those courts were among the very small minority of California courts that adopted CCMS.
The software was pushed by the same bureaucrats that make up the Judicial Council’s staff and local clerks that adopted the software were widely considered to be their allies. In turn, the local CCMS clerks adopted a militant position against press access, refusing access until new complaints were processed.
The final paragraphs of Otero’s order showed that it encompasses all means of filing court documents.
“Planet has not provided any reason, 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.”
“Accordingly,” Otero concluded, “the Court ORDERS Planet, in his official capacity as Court Executive Officer and Clerk of the Ventura County Superior Court, to make copies of newly filed unlimited civil complaints and their associated exhibits, regardless whether such documents are scanned, e-filed, or made viewable in any other format, available to be viewed by the public and the press in a timely manner.”
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