FRESNO, Calif. (CN) — After years of petitioning for timely access, Courthouse News filed a First Amendment action Friday against court clerks in Merced, Stanislaus, Yolo, Butte, Sutter and Yuba counties.
“Since time beyond memory, the press has reviewed new civil complaints when they crossed the intake counter in American courts,” said the complaint filed in federal court in Fresno.
“During the transition from paper to electronic court records, federal courts and many state courts kept that tradition in place,” it continued. “However, some state court clerks abandoned it.”
Those who abandoned the tradition include a number of clerks in California’s Central Valley who are paying hundreds of thousands of public dollars to lease e-filing software from a Texas corporation. That software, called Odyssey, has three access options, two of which provide timely and constitutional access to new court filings.
One option does not.
It blacks out the new filings until court employees finish clerical docketing, work that is regularly done a day or two later. The blackout option is the one chosen by the clerks in Merced, Stanislaus, Yolo, Butte, Sutter and Yuba counties.
Agents for Tyler Technologies, the maker of Odyssey, have switched from the blackout option to the constitutional options in a matter of days, based simply on a request from the clerk. The agents have had said the change costs nothing and a federal judge in Albuquerque concluded the same in a recent ruling.
In addition, eight county courts in California that use the Odyssey software have already moved over to one of those constitutional options that provides a “press review queue” where journalists can review the new cases as soon as they are filed. Courts using different software vendors, including LA Superior, the biggest court in the country, provide the same on-receipt access.
The other constitutional option is called “auto-accept” which means the new filings are automatically pushed into the court’s docket and become public within minutes of receipt. That option is used by state courts in Nevada and Vermont.
There was a longstanding tradition in U.S. courts of providing the press and often the public with access to the new cases right after they crossed the clerk’s counter, often in a box or tray next to the intake clerk. The access was generally within a minute or two of the handoff from the filer to the clerk, who checked to make sure the case was in the right court and the check for filing fees was in the right amount.
That intake work is now done by the e-filing software that requires the lawyer or paralegal to fill in a list of categories, including type of case and jurisdiction, and pay. As a result, there is an easy and painless alternative for clerks who are currently withholding access.
And after years of litigation the federal appellate court for the region, the Ninth Circuit Court of Appeals has made it clear that the right of access attaches upon receipt of a new filing, and access can only be denied if the clerk has an overriding reason and no other alternative.
The large number of courts in California that provide constitutional access to new filings using the same software make it plain that an easy or “least restrictive,” in the legal parlance, alternative is available to the clerks. Yet they refuse.
For example, a letter from Courthouse News to the clerk in Yolo County, where the University of California, Davis, is located, was sent in early 2019. “The press review queue serves the same function as the wooden press box in the age of electronic filing. It allows journalists to report on new matters as soon as they are filed, while they are fresh and hot,” said the letter. “A bit like bread, day-old news is stale and will generally go unreported.”
The letter said the request for a press queue “is part of a larger effort to continue California's tradition of excellent and timely press access in the era of efiling, when, as many courts in California are demonstrating, it is easier than ever to provide.”
The clerk answered, “We appreciate the feedback regarding the press review queue and how it allows journalists immediate access to unlimited filings as they are received and the importance of timely press reporting.”
He said he would consider the press queue when Yolo switched to e-filing at the start of this year. Four follow-up emails this year, over the course of eight months, went unanswered. Variations on that same scenario was played out with the remaining clerks named as defendants in Friday’s First Amendment action.
Courthouse News is represented by Jon Fetterly and Katherine Keating with the Bryan Cave law firm.
“In California, the Superior Courts for the counties of Fresno, Kern, Monterey, Napa, San Mateo, Santa Barbara, Santa Cruz and Sonoma all use Tyler’s Odyssey case management and e-filing systems, and they all provide access to new civil complaints via the statewide press review queue Tyler established for the California courts through Odyssey,” said the complaint.
It noted that courts across the nation using different e-filing systems provide their own versions of on-receipt review queues, including courts using homegrown software such as New York statewide and Orange County Superior in California. Other courts use software provided by third party vendors, such as Granicus, statewide in Arizona, and Journal Technologies in Los Angeles, Placer and Riverside in California.
“Despite the availability of these readily available alternatives, Defendants continue to withhold access to new e-filed civil unlimited complaints until after court clerks manually process and ‘accept’ them, resulting in pervasive delays in access to new e-filed civil complaints.,” the complaint concluded.
The action is filed with a single claim, violation of the First Amendment.
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