Modus Operandi

     Modus Operandi: A distinct pattern or method of operation
     Here is the statement made by Justice Terence Bruiniers last year before the Judicial Council rubber-stamped new e-filing rules over press objections:
     “It is interesting that Orange County’s experience with mandatory e-filing indicates that … most of their filings are completed within 24 hours.”
     That statement helped ram through a set of tortured definitions that would give administrators an excuse to delay press access to newly filed public records until they are processed and thus deemed “official.”
     But it distorts the truth about the delay.
     I talked last week to our Orange County correspondent who said the delay for regular civil cases was running up to one week. On Friday, cases from Tuesday and Wednesday were docketed but could not be seen while the cases from Thursday and Friday had not yet been docketed and could not be seen either.
      Our correspondent noted that the complex cases — the new matters most likely to be important and newsworthy — are further “lagging.”
     A class action over the denial of alcohol permits at a mass music and dance party on Huntington Beach, a controversy that generated coverage on KABC news, was filed on February 7th but not made “official” until February 19th, fully two weeks after it was filed.
     So that newsworthy case was filed but kept in an electronic vault, in effect sealed, until long after it was news.
     But, in the month immediately preceding the Judicial Council’s passage of the e-filing rules, the clerks were working on Saturdays to catch up on docketing, an expensive proposition given that the shortfalls in the court budget. They were able to catch up in time for the Judicial Council meeting.
     So the statement by Bruiniers that filings were being completed within 24 hours was roughly correct for the couple days before it was made. But it is not a fair appraisal of “Orange County’s experience” over time.
     Moving to another statement made on behalf of another California court that delays press access, a lawyer representing the Ventura Superior Court was asked by Ninth Circuit Judge Kim Wardlaw why it was that Ventura was unable to provide the access sought by the press when “other courts are.”
     Wardlaw was referring to the traditional same-day press access granted by other courts in California.
     Robert Naeve with Jones Day answered Wardlaw, “No courts are, your honor.”
     That statement cannot be called a distortion of the truth. It is simply false.
     A host of California courts provide the press with same-day access to new unlimited civil actions, including those in Kern, Fresno, San Mateo, Alameda, Contra Costa, San Francisco and, the biggest court in the state, Los Angeles Superior.
     The statement was made in oral arguments on a case brought by Courthouse News against the Ventura clerk over access delays similar to those in Orange County.
     Another example of the operational method used by administrators resisting press access comes from Orange County’s head clerk Alan Carlson. He told a national gathering of administrators last fall that the press wants access to a new filing “as soon as it is filed with the EFSP.”
     An EFSP is an Electronic File Service Provider, which, shorn of techno-talk, is an attorney service. It delivers legal documents to a court.
     The press wants to see those documents promptly after they are delivered to the court, the date reflected on the file stamp, and not before.
     To say that the press wants to see the new filings while they are still in the hands of the delivery service is false.
     And rankly so.
     But that is the modus operandi employed by the bureaucrats and their enablers who fight press access: to say that a court’s experience is that new filings are available the next day when in fact the delay stretches to two weeks, to say that no courts provide same-day access when in fact plenty do, to say that the press wants access before a new filing is delivered to the court when in fact the press wants access after it is delivered to the court.
     That is their method.

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