National Media Join First Amendment Fight Over Access to Court Records

(CN) – In an ongoing legal war over access to California court records, the nation’s top newspapers have closed ranks with Courthouse News in fighting for traditional and timely review of new complaints under the First Amendment.

A total of 27 news organizations and media advocates signed an amicus brief in support of traditional press access. The list includes the biggest and most widely read newspapers and news agencies in the nation – the Associated Press, the Los Angeles Times, The New York Times, USA Today, The Wall Street Journal and the Washington Post, among many others.

“Both the principles of the First Amendment and the realities of the news cycle lead to the conclusion that, in the context of civil complaints, a delay amounts to a denial, and the First Amendment requires timely access,” said their brief filed last week in the Ninth Circuit.

That legal argument reflects the actuality of widespread press access to new complaints on the day they are filed, before clerks run the complaint through a set of clerical tasks. That tradition has been challenged by a coterie of state-court clerks primarily in Southern California allied with the staff of the overarching administrative body for the California courts, the Judicial Council.

As a result, the underlying case setting Courthouse News against Ventura’s court clerk Michael Planet has come to represent a more fundamental clash between the media and the court bureaucracy in a time of economic and technological change.

Originally filed in 2011, Courthouse News v. Planet is now in the briefing stage of its third trip to the Ninth Circuit Court of Appeals. The current appeal stems from a decision last year by U.S. District Judge S. James Otero, who ruled that the First Amendment applies as soon as the new complaints are filed and journalists are then entitled to see them in a timely manner – before the clerical tasks that follow.

The Ventura clerk and the Judicial Council appealed that ruling in a continuation of their scorched-earth campaign against press access, while a a few likeminded clerks continue to withhold the new complaints despite Otero’s ruling.

As the immediacy of news contained in a fresh complaint fades into “old news,” the clerks run through clerical tasks that are dependent on the vagaries of the work schedule of civil servants interrupted or slowed by vacancies, holidays and staff parties. Delays in press access run from one day to a couple weeks, and in at least one court in California, have extended out to 3 months.

“Immediacy has always been an essential component of newsworthiness,” the media brief said. “A delay beyond timely access irreparably harms the public’s interest in learning about cases pending before the courts. That is even more true in the modern news environment where timeliness is critical to newsworthiness.”

Tactics employed by clerk and council have included a flat denial of the tradition of press access to new court filings, requiring submission by Courthouse News of declarations from reporters all around the country as well as past reporters for Ventura newspapers.

The Ventura clerk also denied any delay in access to the filings, until an official in his office let slip during a deposition that the office tracked delays through internal memos. After requiring extensive discovery by Courthouse News, the clerk dropped his denial and eventually provided the memos.

Spending roughly $5 million to overcome those tactics and get to the merits of its First Amendment claim, Courthouse News won a summary judgment motion last year from Judge Otero who ordered Planet to provide timely access to the new complaints before going through the clerical tasks, whether the complaints were filed in paper or electronic form.

Since then, the clerk has complied with the order and most weeks the press sees every single new case on the day it is filed. That level of press access is similar to access in California courts that have worked with the press to ensure timely access to both e-filed and paper complaints, including Kern, Fresno, Sacramento, Placer, Stanislaus and San Joaquin, Contra Costa, Solano, San Francisco, San Luis Obispo, San Mateo and Los Angeles.

Federal judges in other jurisdictions have ruled in favor of the press on the same issue. Late last year, for example, a federal judge in New York enjoined Manhattan’s state-court clerk from withholding the new complaints while his staff undertook administrative tasks following receipt of the complaints.

After Judge Edgardo Ramos ruled in favor of Courthouse News, the Manhattan clerk provided an electronic inbox for e-filed complaints that mirrors the wooden box traditionally placed on the counter for press review of new paper complaints.

Since the judge’s decision, a total of eight state courts in New York have set up electronic inboxes that provide immediate press access to just-filed civil complaints, in contrast to the California administrators who continue to fight Otero’s ruling tooth and nail.

Stonewalled by clerks in Ventura’s neighboring court, Santa Barbara, as well as those in Riverside, San Bernardino and Orange County, Courthouse News tried earlier this year to enforce Otero’s ruling by filing a federal action against Orange County’s court clerk, David Yamasaki.

But in that case, U.S. District Judge Andrew Guilford in Santa Ana wrote a tentative ruling that distinguished Otero’s opinion, saying it involved a smaller court. And in the meantime, the Orange County clerk has continued to withhold the complaints during clerical processing.

The Yamasaki case has added fuel to the heated briefing battle underway in the Planet appeal, which turns on the same issue.

“Timely access to civil complaints is ‘an essential part of the First Amendment’s purpose to ensure that the individual citizen can participate in and contribute to our republican system of self-government,’” said the media brief, quoting from the first Ninth Circuit ruling in the Planet case.

The brief cited “Covering America’s Courts,” by former journalist and now professor Toni Locy, in which she describes daily checks of a “wooden box on a counter where they placed the paper versions of the day’s lawsuits.”

The 48-page brief, written by Bruce Brown, Caitlin Vogus and Selina MacLaren with the Reporters Committee for Freedom of the Press, reinforces the main point made by Courthouse News, that new complaints are public when they cross the clerk’s counter and press access must come before clerical processing.

“In the modern news environment,” the media brief said, “court policies that delay access to judicial records can amount to a complete denial of meaningful access, because ‘old news’ does not receive the same level of public attention as timely news, and thus may not be published at all. In contrast, timely access to civil complaints allows the news media to learn of new civil lawsuits as they are filed and to report them to the public when their newsworthiness is at its height.”

The news and public interest groups also signing onto the brief include the E.W. Scripps Company with 33 TV stations; Gannett Co. with 109 newspapers including The Arizona Republic, The Indianapolis Star, The Des Moines Register and the Milwaukee Journal Sentinel, in addition to USA Today; Hearst Corp. which owns 30 TV stations and a number of newspapers such as the San Francisco Chronicle and the Houston Chronicle; McClatchy Company which publishes the Miami Herald, The Kansas City Star, The Sacramento Bee, The Charlotte Observer and the Fort Worth Star-Telegram; Media News Group out of Colorado with 56 newspapers in 12 states and a set of TV stations, in addition to Meredith Corporation out of Iowa with 17 TV stations.

News associations signing onto the brief include American Society of News Editors, Association of Alternative News Media, Center for Investigative Reporting, International Documentary Association, National Press Photographers Association, New England Newspaper and Press Association, News Media Alliance, Online News Association, Radio Television Digital News Association, Reporters Without Borders, Society of Professional Journalists and the Student Press Law Center.

Media advocacy groups signing the amicus brief include the First Amendment Coalition, New England First Amendment Coalition, and the Tully Center for Free Speech at Syracuse University. The appendix to the media brief includes a description of the New England coalition as an “organization of people who believe in the power of transparency in a democratic society.”

 

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