Judge Abstains on First Amendment Case

LOS ANGELES (CN) - A federal judge has refused to hear an action by Courthouse News Service against Ventura's court clerk over access to newly filed civil actions, saying it was not the role of a federal judge to tell a state court how to handle its business. In abstaining from the case on Monday, Judge Manuel Real cited the recent Ninth Circuit ruling E.T. v. Cantil-Sakauye, which was the first decision by that circuit to apply the seldom used O'Shea abstention doctrine.

Courthouse News brought the action this fall under the First Amendment, challenging delays imposed by the Ventura court clerk on press review of new civil complaints, delays that extended from days to weeks such that the new cases were old news by the time the clerk allowed the press to see them.

Courthouse News argued that the court's refusal to let the press see the new complaints until the time-consuming process of entering the cases into the controversial California Court Case Management System and then double-checking that work served as a barrier to the press's ability to oversee the business of the court, in violation of the First Amendment.

The court's clerk, Michael Planet, answered that it would cost the court money to make the cases available on the day they are filed, and that a federal judge should not impose that burden on a state court.

In reply, Courthouse News said that allowing a journalist see the new cases does not have to cost anything and that press access is a matter of will rather than money. The news service pointed to a host of state courts that allow the press to review new cases at the end of the day on which they are filed, including those in Los Angeles and San Francisco.

Although not central to the First Amendment issues, the Courthouse News reporter in Ventura also chronicled that court's imposition of obstacles to press access in addition to delay.

Reporter Julianna Krolak said that rules put in place after the court adopted the CCMS docketing system limited the number of cases the reporter could see to five at a time, for example. The reporter was required to stand in a line for up to an hour in order to ask for five cases and, even if none of those cases were available, return to the back of the line to ask for the next five.

In refusing to rule on the First Amendment issues, Real said the federal court should abstain from telling the state court what to do. That decision to abstain, made from the bench, runs counter to the decision by a federal judge in Houston on a similar set of facts.

In that case, also brought by Courthouse News Service, Judge Melinda Harmon ordered the state court clerk in Houston to grant the press same-day access to new civil actions.

In his decision, Real relied on the Ninth Circuit's September ruling in the E.T. case which refused to order a reduction in the case loads for lawyers in Sacramento's dependency courts. That ruling by a three-judge panel followed the rarely cited Second Circuit O'Shea doctrine as a basis for abstention, and is currently subject to a motion for review by the Ninth Circuit judges en banc.

As applied, the E.T. ruling appears to take away federal court as a place where the press can seek enforcement of the First Amendment on a wide range of challenges to state bureaucracies.

The defendants in the E.T. case, including California Chief Justice Tani Cantil-Sakauye, are represented by Robert Naeve with Jones Day. Naeve also represents the Ventura clerk in the action brought by Courthouse News Service, along with Erica Reilley, both in Los Angeles.

Courthouse News is represented by Rachel Matteo-Boem, David Greene and Leila Knox, with Holme Roberts & Owen in San Francisco.

Matteo-Boehm said Courthouse News is considering its appellate options.

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