The bill for a decade-long First Amendment fight in California is now due after the right of access to court filings upon receipt has been established throughout the West.
If lawyers were pipers – and in a way they are – it comes a time to pay the pipers. After ten years representing this news service against the power of the California court bureaucracy, the time has come to pay the Courthouse News pipers.
The court clerk in Ventura finally lost his diehard battle against traditional press access where reporters checked new filings as they crossed the clerk’s counter. Supported by the enormous bureaucracy of California’s court system, the clerk spent a large but, until now, unknown amount of public money to fight public access.
Revealed in a court filing late last week, the amount of public money spent by the public servant and the bureaucracy above him is now known. It is $1.6 million.
That amount was spent from the statewide court budget during a decade that included great hardship for the trial courts of California, times that brought mass layoffs of court personnel, constriction of court hours and closure of small, rural courthouses, sharply affecting the people of the state.
And yet the overarching Judicial Council, a rubber stamp body, and its 740-member staff, all under the leadership of the state’s chief justice, continued to pay a white-shoe law firm to fight a Quixotic battle against traditional press access to court filings when they are received, when they are hot, attempting, in other words, over the course of ten years and $1.6 million in public money, to override the First Amendment with the bureaucratic imperative to put things in files.
“I am personally familiar with the amounts Jones Day has billed in connection with its representation of VSC in this matter,” wrote Erica Reilley, the unlucky lawyer stuck with defending the Ventura Superior Court clerk, referred to as VSC, on the fee application.
“To-date, Jones Day has billed and invoiced 4,219 hours in connection with its representation of VSC in this matter,” wrote Reilley, “totaling approximately $1.6 million in fees.”
The bill from her courtroom opponents is in fact much higher. It is assessed at $6.5 million, paid by this news service over ten years as the litigation against Ventura Clerk Michael Planet went three times up and back down the appellate ladder. And that sum includes a discount.
“From before this action was filed, the over-arching issue – and the obstacle to a resolution – was VSC’s insistence that the First Amendment did not require public access to complaints before processing,” said the reply brief by Roger Myers with the Bryan Cave law firm. “This case lasted a decade because VSC did everything to avoid a ruling on this issue.”
Years of litigation wound up affirming a qualified right of access under the First Amendment to new complaints when they are received by a court, a ruling that applies throughout the Ninth Circuit’s huge domain that covers most of the West. The fee request that follows comes out of federal law that says, when the government, with all its power and money, is sued under the Bill of Rights — and loses – then it must pay the victor’s attorney fees.
The Ninth Circuit panel led by Judge Kim McLane Wardlaw issued an order in June 2020 saying Courthouse News had “established that a First Amendment right of access to civil complaints at the time of filing exists.” The order declared Courthouse News the prevailing party and granted its motion for attorneys fees, then remanded to the trial court to decide the amount of the fee award.
The case started in 2011 when Courthouse News filed a First Amendment claim against Planet in federal court in Los Angeles. The clerk – with the Judicial Council staff operating mostly behind the scenes — asked for a dismissal based on “abstention,” a principle that roughly translates as, federal courts should not audit state courts.
The clerk won that argument in the lower court and the news service appealed. The Ninth Circuit reversed in a ruling referred to as Planet I. After the case was sent back to the trial court, the clerk again moved for dismissal, and again the motion was granted, and again the decision was reversed, this time in an unpublished opinion called Planet II.
Then, five years into what had become a legal war, U.S. Judge James Otero in Los Angeles in 2016 issued a 30-page, single-spaced minute order unequivocally affirming traditional press access to new civil complaints soon after they crossed the clerk’s counter. “’Logic’ likewise demands that the qualified right of timely access must arise the moment a complaint is received by the court, rather than after ‘processing’ is completed,” wrote Otero.
“Planet does not meaningfully dispute that timing is a critical element of a story’s newsworthiness,” the judge added.
The clerk, and the council, and whoever makes the decisions, could not accept that, and during hard times for the courts they paid more legal fees to the high-end firm to appeal the judge’s ruling. They lost again, for the third time. The Ninth Circuit panel affirmed the key aspects of Otero’s massive minute order, but it reversed on one, giving the clerk some leeway when he is scanning paper files during a budget crisis.
Judge Dorothy Gee in federal court in Los Angeles put the last nail in the case’s coffin this January when she issued a declaratory judgment in January saying the First Amendment right of access attaches at the time of receipt, before processing takes place.
The clerk and those above decided not to challenge Gee’s judgment which put a “fin” on ten years of litigation over First Amendment access to newly filed court records. But that left a final battle over the huge pot of attorney fees.
“After ‘fighting the case to its last breath’ and losing, Planet ‘cannot complain that the attorneys’ fees are disproportionate,’ wrote Roger Myers with the Bryan Cave law firm.
He was quoting from the opinion last year by Judge Henry Coke Morgan Jr. in the Eastern District of Virginia who awarded $1.9 million in favor of Courthouse News after a two-year struggle against Virginia’s clerks. They used tactics similar to the Ventura clerk which mostly consisted of hide-the-ball and deny, deny, deny.
On the subject at the very heart of the case, Courthouse News argued that since time out of mind a nationwide tradition of access to new civil complaints, often a source of news, had been followed in federal and state courthouses all over the country. A box or a tray stood on the clerk’s counter and, as soon as they crossed the counter, copies of the new complaints were put in the box for press and public to look over. Even in Ventura, a white, plastic media bin stood at the end of the intake counter.
But the clerk’s lawyers said it wasn’t true, denied it, said in essence, ‘what tradition?’ That forced Courthouse News and it lawyers to spend weeks gathering 26 declarations from reporters all around the country to show that, yes, it was true, a tradition of access at the time of receipt did exist.
And those declarations were cited by Otero in his 30-page, single-spaced ruling in 2016. “Indeed, CNS has submitted a number of declarations demonstrating that there is a long history of courts making complaints available to the media and the public soon after they are received, regardless whether such courts use paper filing or e-filing systems,” he wrote in his order on the Courthouse News summary judgment motion.
Even so, the Jones Day team is now arguing – and a reasonable observer might say infuriatingly so — that the declarations they forced were repetitive and unnecessary. That argument was rebutted in a declaration filed by Jon Fetterly, one of the Bryan Cave lawyers who worked on the case.
“The arguments advanced by Defendant reflect a consistent theme throughout this case whereby CNS has incurred significant time and expense responding to arguments made by Defendant that were either incomplete or misleading, or both,” wrote Jon Fetterly who worked with Katherine Keating, both from Bryan Cave, on the fee application.
“As noted by Alberto Brandolini, who coined a principle commonly known as ‘Brandolini’s Law,’” wrote Fetterly in his declaration, “the amount of energy needed to refute such arguments is an order of magnitude greater than the energy needed to produce them.”
Brandolini’s law encapsulates an everyday truth, illustrated by a hypothetical dialogue over press access in courts of this nation.
Clerk A: There is no tradition of access.
Reporter B: No, I saw it in court after court, in federal court in Los Angeles and then over in superior court, and I saw the box in Orange County, and up in San Francisco, in superior and in fed. And then it was there in Portland and Seattle too, and Chicago, and in New York, state court and southern district. Austin, Houston, Miami, St. Louis, Minneapolis, Cincinnati too. But I don’t know about Vermont, not sure the First Amendment gets that far north.
That is how Brandolini’s law works, the lawyers argued, in legal disputes but also in everyday life. It takes a lot longer to explain why something is true than to simply say, ‘Nah.’
One denial that crystallized the tactics used by the clerk was his coming-out argument that in fact his staff was routing new complaints into a press box on the counter quite quickly, and he had electronic records to prove it.
The Courthouse News reporter in Ventura, Julianna Krolak, insisted, on the other hand, that cases routed to the media box were not showing up there.
“So I gave the request slip to the clerk, Jessica, who looked up the case on the computer and told me it was in the media bin on 5-16-2014,” Krolak wrote in an email at the time. “She then went to Friday’s media bin and today’s media bin cases and found that although it was logged into the computer as being in the media bin, it was not there. They do not know where the case is. It reminded me of the time the supervisor in filings filed a declaration about the location of the complaints based on what her computer told her as opposed to the complaint’s actual location.”
It took a six-hour deposition with Rachel Matteo-Boehm, also from Bryan Cave, directing questions towards a wiley and evasive deputy clerk, but the deposition established that the docket entry, “routed” to the media bin, only meant the new complaint should eventually go there. In fact, the new complaints were first sent to a “quality control” desk, and often to a judge, and days or weeks later either put in the media box or in a file in the records room.
The clerk’s 2015 answer to the news service’s 2011 complaint came after two trips to the Court of Appeal. In it, the clerk used the term “deny” thirty three times, combined with twelve affirmative defenses. The last one said the clerk had an “overriding interest” in holding back the complaints for docketing.
Each denial had to be overcome and each affirmative defense had to be demolished.
For example, even though the clerk denied that there were delays in access, it took discovery of an internal email to establish that the clerk’s office knew about delays all along. The 2013 email showed a reporter from the Daily Journal newspaper in Los Angeles asking Ventura’s deputy clerk about delays in processing. And the deputy clerk had answered that “delays in the processing of new filings has grown from two to six weeks.”
Those were the tactics used throughout a decade of litigation right up through the summer of 2020 when the clerk’s office announced a new policy whereby it would “not revert to the pre-2014 practice of fully processing civil unlimited complaints prior to making them publicly available.”
Judge Gee in January rejected that last, desperate attempt to avoid an injunction, saying nothing stopped the clerk from issuing another notice changing his mind and returning to his old policy. “And in any event,” she wrote in her January order, “if VSC truly would never consider returning to the processing policy, then it would have no reason to vociferously object to an injunction against such policy.”
Thus the clerk fought, undeterred, unrepentant to the end, for the bureaucratic prerogative of doing clerical work before allowing the press and public to see new court filings. And yet appellate judges at times express surprise that these struggles, the legal equivalent of Godzilla versus King Kong, are not amicably settled.
In the Courthouse News reply brief filed late last week, Myers referred to Otero’s original 30-page motion for summary judgment order when he wrote, “As the Ninth Circuit has instructed, courts should not ‘assume time spent by an opposing counsel is a good measure of the time reasonably expended.’ It takes little time to say ‘CNS has no possible right of access to new complaints’ before ‘judicial decision,’ but weeks to prepare ‘a number of declarations demonstrating … a long history of courts making complaints available … as soon as they are received.’ MSJ Order 18-19; Fetterly Reply Dec., ¶¶ 3 (citing Brandolini’s Law)”
He also pointed at the clerk’s continuing inaccuracy on factual matters involving numbers, in particular the attempts to knock items off the Courthouse News legal bill.
“CNS caught VSC double-counting deductions,” he wrote. “CNS noted this problem again in the VSC’s fee opposition in the Ninth Circuit. That did not stop VSC from repeating this mistake, as it is still double-, triple- and even quadruple-counting deductions.”
But Reilley with Jones Day had some straight-up ripostes of her own.
“The Superior Court of California, County of Ventura acknowledges that the Ninth Circuit and this Court have held that Courthouse News Service is the prevailing party in this action for purposes of 42 U.S.C. § 1988. In addition, VSC does not challenge the reasonableness of the rates charged by CNS’s attorneys in this action. Hence, the question before this court is whether CNS’s current fee request, reflecting 14,707 hours and totaling $6.64 million, constitutes a reasonable fee,” she wrote in her answering brief.
“CNS’s lawyers have spent more than 2,700 hours doing ‘research’ over the course of this case and nearly 1,000 hours preparing for oral argument,” Reilley continued. “And CNS’s lawyers have spent more than 3,300 hours in internal conferences. Those are not conferences with their client or with Jones Day or any other third party; those are conferences amongst themselves. That equates to conferencing every day, all day, for 8 hours per day for more than 410 days straight.”
Myers, a former Ninth Circuit law clerk, returned fire: “CNS bore the burdens of proof and persuasion while VSC withheld key evidence, this case had far greater precedential value to CNS, and that the Court ‘must carefully control … for the possibility that the prevailing party’s attorney – who, after all, did prevail – spent more time because she did better work.’ Chabner v. United of Omaha Life Ins. Co. (N.D. Cal. Oct. 12, 1999) (“defendant lost this case, so defendant’s approach does not recommend a model for conducting litigation.”).
A bit like a whirling dervish dancing through the law and a ten-year record while doing a legal rat-a-tat-tat on his opponents, Myers argued in conclusion that the hard and long fought legal battle had yielded a powerful First Amendment precedent that would rule much of the West for years to come.
“Indeed, by its affirmance of CNS’s constitutional right of access before processing and its denial of VSC’s mootness claim, Planet III greatly enhanced CNS’s level of success,” said his reply brief. “As a result of CNS’s victory in the Ninth Circuit, this constitutional right is now the law for the entire Ninth Circuit.”