First Amendment Complaint Filed Over Access Policy in San Jose Courts

SAN JOSE, Calif. (CN) – Courthouse News filed a First Amendment action against the court clerk in San Jose, California, on Thursday over the practice of holding up access to new civil actions filed in Silicon Valley, where internet giants such as Google and Facebook are based.

“The First Amendment provides the press and public with a presumptive right of access to civil complaints filed with the court,” said the complaint, citing the Ninth Circuit’s 2014 decision in Courthouse News Service v. Planet.

The case against the Santa Clara County court clerk was filed in the late afternoon Thursday in U.S. District Court in San Jose where, based on access policy in most federal courts, it could be reviewed immediately.

“Timely access to new civil complaints is essential to ensure that news of civil disputes reaches the public when it is most likely to become the subject of public discussion, and is thus vital to the public’s ability to discuss what is happening in an important branch of government,” said the complaint.

Courthouse News first began reporting on Santa Clara Superior Court in the late 1990’s, when reporters went behind the counter in the clerk’s office to look over the day’s new civil complaints, kept in a cardboard box on an empty desk.

During earlier decades, that form of press access was common in California’s state courts from Orange County to Los Angeles to San Francisco. Journalists covered federal courts in California the same way, going into the clerk’s office at the end of the day to review the day’s catch of new filings.

But as courts have switched to the new technology of electronic filing, press and public access have in some courts gone backwards. A few clerks have required that cases be first processed before they can be reviewed by journalists, and that processing often takes two or more court days.

For example, In Orange County Superior, the first court in California to require e-filing, roughly one third of the new civil cases are currently being withheld for two days or more. It is worse for the most important cases, labeled “complex.” Fully 60 percent of the complex cases were withheld for two days or more, based on tracking information over the first three months the year.

By that time, the news in the complaints is as stale as a two-day-old baguette.

In its courts papers, Courthouse News argued that access to electronically filed complaints is entirely a matter of policy.

Other courts in California, such as those in Fresno and Bakersfield, have also moved over to electronic filing, and they have provided press queues which allow journalists to see the new cases on receipt, as they come across the virtual counter, just as they did when cases were filed in paper form across a physical counter.

In the Santa Clara complaint filed Thursday, lawyers representing Courthouse News — Jon Fetterly, Katherine Keating, Goli Mahdavi, and Rachel Matteo-Boehm with Bryan Cave — asked for an injunction and a declaration saying the policy of withholding access violates the First Amendment.

“The complaint is the document by which the authority of a branch of government is invoked to publicly resolve what had previously been a private dispute,” said the complaint. “When a complaint is received by a clerk for filing, the public – which funds the operation of the courts – is entitled to know who has invoked the jurisdiction and authority of the judicial branch and to what end.”


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