Ninth Circuit Briefs Completed in CNS Challenge to Ventura Clerk

Ninth Circuit briefs are now complete in the Courthouse News challenge to Ventura's court clerk over delays in access to newly filed civil complaints, a traditional area of news coverage.

"As evidenced by the many courts that already provide it, ensuring journalists have access at the end of each court day to the day's new civil complaints is fundamentally a matter of will," said lawyers from the Bryan Cave law firm, representing Courthouse News.

"This lawsuit was only necessary," according to their reply brief filed Wednesday, "because of the Ventura Clerk's stubborn refusal to budge from his position that he will not allow access until after full processing."

Reviewing the day's new filings at the end of the day is a traditional part of beat coverage by a courthouse reporter.

The tradition is respected in all the federal courts in California and a host of state superior courts from Los Angeles to San Francisco, Bakersfield to Fresno and others in between.

Ventura, on the other hand, has hewed to the policy of the central authority of the administrative office for California's courts, moving early, for example, to adopt cumbersome software called the Court Case Management System that turned into a white elephant after costing taxpayers a half-billion dollars.

The Ventura clerk, Michael Planet, refused to allow journalists to review the new cases until they were entered into that case management software, a process that took from two days to one week and sometimes longer. By then, the new cases were old news.

Last year, Courthouse News challenged the clerk's policy in federal court in Los Angeles on First Amendment grounds. But Judge Manuel Real threw the case out, saying the matter was for state courts and he should abstain.

An appeal to the Ninth Circuit followed.

The Bryan Cave team argued that Real's ruling took away the federal courts as a place to enforce First Amendment rights against state officials.

"At issue in this appeal is the continued availability of a federal forum to address systematic violations by a state court of the First Amendment right of access to public court records," said the opening brief by Bryan Cave lawyers Roger Myers, Rachel Matteo-Boehm, David Greene and Leila Knox.

The Reporters Committee for Freedom of the Press filed an amicus brief supporting Courthouse News.

The delays imposed by the clerk "constitute an impermissible burden on the media's right to collect and disseminate the news and severely curtail journalists' ability to do so in a manner that serves the public interest," wrote Lucy Dalglish, Gregg Leslie and Kristen Rasmussen for the reporters committee.

Representing Ventura's clerk, Robert Naeve with Jones Day argued that the First Amendment issues were novel and should first be decided first in state court.

The lower court ruling "recognized that requiring state courts to guarantee `same-day access' would impermissibly entangle federal courts in the administration of the California judicial system," said the answering brief authored by Naeve, Erica Reilley and Nathaniel Garrett.

Jones Day is often described as a "white shoe" firm, representing large business clients at very high rates. Jones Day has handled a number of cases for the courts in California, where the central administrative office normally coordinates and pays for the representation.

The central court administrative office employs a large staff of lawyers and has the option of seeking representation from the state attorney general. It has chosen instead to employ a private firm to represent court officials. In recent months, the administrative office has also been pleading with the Legislature and the governor for more money.

As lawyers in the case noted, the Ventura clerk's alternative to fighting press access tooth and nail, and spending a large amount of public money in the process, was to grant journalists the traditional access provided by federal and state courts in California.

The Courthouse News lawyers argued that Judge Real's decision gave intransigent state court bureaucrats a free pass to violate the First Amendment with impunity.

The Bryan Cave team pointed to a ruling by U.S. District Court Judge Melinda Harmon in Texas who granted no such deference to the Houston clerk and ordered him to provide the press with same-day access to all new civil complaints filed in Houston's state court.

They also quoted from a seminal Ninth Circuit case, Green v. Tucson, saying abstention doctrines, such as the ones relied on by Judge Real, should not be transformed into "a broad swath through the fabric of federal jurisdiction, relegating parties to state court whenever state court litigation could resolve a federal question."

On the clerk's side of the case, the Jones Day lawyers argued a number of factual points, saying that the clerk handled thousands of documents, it was simply too expensive to speed up processing of the cases so that journalists could review them, and only courts that allowed electronic filing could provide same-day access.

In reply, the Courthouse News lawyers said clerk Planet had constructed an alternate factual landscape, not unlike the holodeck of science fiction, in order to support his argument.

In fact, the Ventura court handles on average fewer than 10 new civil unlimited complaints in a day, noted the Bryan Cave lawyers. That number is roughly one tenth of the number of filings that the Houston clerk must provide for press review on the day of filing, under federal court order.

They also pointed out that Courthouse News had never asked the clerk to speed up processing, as his argument would lead one to believe. The news reporters were asking to see the cases ahead of all the administrative steps that accompany a new filing, at no cost to the court.

And they slammed the clerk for suggesting to the Ninth Circuit judges that only courts with electronic filing could provide same-day access, a position blatantly inconsistent with the many courts that provide same-day access to paper filings, including the federal courts in San Francisco and Los Angeles.

The assertion that electronic filing is required for prompt access also runs counter to decades of traditional, same-day access provided by courts throughout the United States long before the advent of the Internet or electronic filing.

In their briefs on appeal, the Bryan Cave team pressed the point that journalists could no longer go into federal court to enforce the First Amendment against state court officials, if the lower court ruling was allowed to stand.

"Parties seeking to prevent or cure such violations cannot seek redress in federal court, but must instead be left to enforce their rights in the very state courts that are denying them," they wrote.

"This result undermines the First Amendment right of access itself, a right this Court has consistently upheld and is critical to our system of open government, a hallmark of our democracy since our nation's founding."

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