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Courthouse News Service Courthouse News Service

Media Groups File Brief in Support of CNS First Amendment Action

A coalition of news groups has filed a brief supporting Courthouse News Service in its action against the Ventura court clerk, over his policy of withholding access to new civil complaints. CNS on Monday also filed its opposing brief in a dueling pair of summary judgment motions, and the clerk was expected to do the same.

"The First Amendment affords the public and the press a right of access to civil complaints, a right that attaches upon filing," said the amicus brief on behalf of the Reporters Committee for Freedom of the Press and a host of media organizations.

Those organizations include the 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.

In support of that statement, the media groups cited to the first Ninth Circuit opinion in the long-running litigation between CNS and Ventura clerk Michael Planet, generally referred to as Planet I. In that opinion, Ninth Circuit Judge Kim Wardlaw, joined by judges Mary Murguia and John Noonan, reversed a lower court's dismissal of the CNS action.

"Open government has been a hallmark of our democracy since our nation's founding," wrote Wardlaw. "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."

Despite that ruling, civil servants who were part of Administrative Office of the Courts, and who now call themselves "the staff" of the Judicial Council, have continued to fight a diehard battle against the CNS case and against press access in the courts of California.

Planet conceded in his deposition that the council's staff was helping with his defense, and in a later deposition, one of his lawyers referred to the Judicial Council as "my client."

The litigation has cost Courthouse News several million in legal fees and the council is spending amounts that are likely similar in their fight against press access, a cost borne by the budget for the California courts and ultimately by California's taxpapayers.

Going back in time, the council staff worked hand in glove with a small group of local court clerks in California who pushed financially disastrous software called the Court Case Management System. The software is labor intensive and it was ultimately abandoned by the council after more than a half-billion dollars in state funds was spent on the project.

However, once installed in Ventura, Orange County and San Diego courts, the software has remained in place. The clerks in those three courts have been militant in their refusal to provide press access until new court filings are docketed into the antiquated software, and the council staff has continued to defend that policy.

Doubly Mistaken

After the Planet I ruling in 2014, the Ventura clerk again moved for dismissal of the CNS action, arguing that new complaints are "private documents" until they are processed. In U.S. District Court in Los Angeles, Judge Manuel Real again dismissed the case, the Ninth Circuit again reversed, and the appellate panel ordered that the case be reassigned. Through a random draw, the case fell to Judge James Otero who then set a tight schedule for motions.

In their summary judgment motion filed two weeks ago, lawyers for the clerk and council said Planet had started scanning the new complaints, making many of them quickly available on a computer terminal in the records room in Ventura's courthouse.

The clerk is represented by Robert Naeve, Erica Reilley and Charlotte Wasserstein from Jones Day, and Frederick Hayes with his own office. They argued that Judge Otero should not rule because the scanning program makes the case moot.

"CNS's claim for injunctive relief should be denied," said their brief in support of their motion, which missed Otero's deadline by a few hours. Otero later said he would still consider it.

The 25-page brief argued, "Given the presumption that governmental changes in policy are made in good faith, CNS's request for an injunction has been mooted. Even if it has not, CNS cannot meet the high burden of such a drastic remedy."

The problem they face is that Ninth Circuit opinions on mootness require that the clerk in essence recognize the error of his ways, and put in place a policy that complies with the First Amendment and is unlikely to be changed.

The clerk has not done that, instead continuing steadfast in his conviction that the press is not entitled to access before processing is completed, an amorphous set of tasks that takes days or weeks to complete.

"It is appropriate for the Court to deny media requests to examine newly filed complaints on the grounds that the court has not yet completed its administrative tasks associated with the processing of those complaints," said Planet, in a deposition taken in November.

His deputy clerk took the same position, "Until it's processed and filed, it's not a court case; therefore the public shouldn't be viewing it."

Both the clerk and his deputy refused to credit Planet I as the cause for the scanning program and the clerk's staff refers to the scanning simply as a "customer service." Planet said he would stop the program when he moved to e-filing, which in other CCMS courts, has resulted in major delays in press access.

In their opposing brief filed on time Monday, lawyers for CNS hit hard on that point.

"At root, the motion for summary judgment of Defendant Planet asserts this action is moot on the theory that the scanning procedure satisfies the First Amendment right to contemporaneous access that Defendant denies even exists," said the opening sentence of the opposing brief.

CNS is represented by Rachel Matteo-Boehm, Roger Myers, Jonathan Fetterly and Leila Knox with Bryan Cave.

Their brief continued, "Defendant is doubly mistaken."

"His implacable position, recently affirmed, that 'it is appropriate for the Court to deny media requests to examine newly filed complaints on the grounds that the Court has not yet completed its administrative tasks associated with the processing of those complaints' confirms that 'uncertainty and controversy in this litigation' remains and requires relief."

The clerk's claim of 97% efficiency in same-day scanning was also greatly overstated, said the brief, because the scans did not include exhibits, a key aspect of a complaint for news purposes, and the clerk's staff kicked journalists out of the records room before many of the scans were available. "That procedure is not as Defendant makes it out to be."

On Friday, for example, the CNS reporter, Julianna Krolak saw only five new complaints filed that day before she was required to leave the records room a little after 3:00. But at least nine cases were filed Friday, something she realized the next day by looking at the Ventura court's online docket.

Manufactured Statistics

The tactical and heavily shaded use of statistical claims is a hallmark of the Judicial Council's staff and the clerks who follow their line.

Early on in the CNS case, in 2011, an official from the Ventura clerk's office filed a declaration in federal court that said, "The overwhelming bulk (more than 75%) of new complaints were received, processed and sent to the media bin on the same or next day."

The statement was at odds with the CNS reporter's experience, which was that cases were rarely seen on the day they were filed, and the bulk of the cases were delayed by a week or more. Some of the most important cases took months to become available.

It turned out the official's declaration relied on a very elastic meaning of the word "located."

And it took a series of depositions to find out that the computer entry by the clerk's staff, saying a new complaint was "located to the media bin," actually meant that it should eventually go to the media bin, after running a gauntlet of intervening procedures that included "quality control" where files often sat for days. The most important cases were sent immediately to judges' chambers, where they sat for days or weeks, even though they were "located" to the media bin.

Contrary to the declaration, internal memos from Planet's office obtained through discovery showed that the docketing of new complaints into the CCMS system was regularly delayed by weeks. One memo said that a delay of 36 days before docketing even began was "within reason."

During those stretches of time, new complaints were withheld from the press.

Along with that 2011 declaration, lawyers for the clerk and council argued that the CNS action was not a free expression case and the judge should abstain because the case involved sensitive state policy. At oral argument in Planet I, Ninth Circuit Judge Wardlaw sharply questioned the clerk's lawyer.

"Tell me how the timing of when a reporter gets to see the complaint implicates an important, sensitive state policy," Wardlaw asked.

Robert Naeve with Jones Day answered that the court was short on money. He added, "They don't accept filings anymore." In fact, the Ventura clerk never stopped accepting filings, including new complaints.

"I don't think that's a basis for Judge Real to abstain in this case," Wardlaw answered.

In answer to another question from Wardlaw, Naeve said "no court" in California provided the press with same-day access. In fact, a host of California courts, including Los Angeles Superior, provide the press with same-day access to new complaints, along with the federal courts throughout the state.

Back At It

The current claim of 97% same-day access is similarly flawed because it does not account for scanning done after reporters must leave the records room at 3:00 p.m. Reporters can only see the scans in the records room.

The early closing time was a measure taken by the clerk at the bottom of California's economic downtown. It has been kept in place despite a rebound in the economy and the budget and despite the difficulty it causes for all those who need to file documents with the clerk.

In addition to that pumped up statistic, CNS reporter Krolak observed what looked like another effort to make the numbers look good.

In January, as motions for summary judgment were being prepared, Krolak noted that the work rate in the clerk's office suddenly jumped up. The staff was scanning new complaints more quickly than in the past, and they were docketing and assigning numbers to the new cases much more efficiently.

"Since sometime in January, it is like 'boom,' they have case numbers right away," said Krolak in her declaration filed Monday.

A similar tactic was used by the Judicial Council's staff working with Orange County Clerk Alan Carlson as their cat's paw. He had his staff working weekends to improve statistics ahead of a crucial meeting of the Judicial Council where proposed e-filing rules were scheduled for a vote.

The proposed rules were opposed by the L.A. Times and the California Newspaper Publishers Association as well as a host of additional news organizations and open government groups. The rules invented a new category of "officially filed" documents that required "review" and "processing" before the press could see them -- right in line with the position taken by the Ventura and Orange County clerks.

The overtime work by Carlson's staff allowed a member of the Judicial Council's technology committee to say that Orange County e-filings were "completed within 24 hours." But access delays returned in Orange County almost immediately after the council overrode press objections and approved the rules on a unanimous vote without debate.

Carlson later sent an email to Planet advising him on what defense he should use to defeat the CNS action. That suggested defense matched the defense used by Planet's lawyers when they successfully argued for abstention, before the Ninth Circuit panel knocked it down.

In their pending summary judgment motion, the same lawyers argued that an injunction ordering the clerk to provide the press with same-day access to new complaints would "divert vital resources away from other areas of the court's judicial administration system. A permanent injunction would not be in the public interest, and CNS's request should be denied."

In their opposing brief filed Monday, CNS lawyers from Bryan Cave wrote, "About the only point of constitutional law Defendant gets right is the one it took two Ninth Circuit decisions for him to reluctantly 'acknowledge:' A First Amendment right of access attaches to new civil complaints."

"Defendant undervalues and misunderstands the First Amendment," the brief continued. "He sought abstention on the theory this case did not implicate free speech. The Ninth Circuit held otherwise. He then sought dismissal on the theory no right of access exists at filing. The Ninth Circuit gave short shrift to this notion, as well.

"Now he is back at it, arguing once again that the district court should eschew ruling on the First Amendment issue on the theory that his new scanning procedure satisfies his constitutional obligations. This Court should not be taken in."

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