You would think that after the Ninth Circuit affirmed an injunction against the Ventura, California, clerk’s no-access-before-process policy, other clerks in the circuit would think twice about pursuing exactly the same policy.
But you would be wrong to think that.
After years of these access battles, I have come to realize deep down that some court administrators are willing to use the power of the public and spend money provided by the public in order to fight against access for the public --- and do so with impunity.
Despite the Ninth Circuit ruling last year in Courthouse News v. Planet, commonly referred to as Planet III, administrators in Oregon are refusing to provide traditional access at the time of receipt. Instead they are defending a policy of no-access-before-process.
And they are willing to duke it out in federal court and lose if necessary, and pay attorney fees to the winner, if necessary, out of pure bureaucratic obduracy.
In order to establish a First Amendment right of access, we in the press have had to show, among other requirements, a tradition. Multnomah County Circuit Court in Portland gives us a great example of that tradition.
Until Oregon moved to electronic filing of court records around 2014, reporters for The Oregonian, the Willamette Weekly, Portland Mercury and Courthouse News looked through the new civil complaints just after they crossed the intake counter --- before they were handed off to the docketing clerk.
Reporters were buzzed past the counter and into the clerk’s office, where they worked at a cubicle next to the docketing clerk. As soon as the first reporter showed up, the supervisor brought over a stack of new complaints from the intake counter which was a few steps away.
He added to the stack the most recent filings made right up to the time the office closed.
Across the street, at Oregon’s U.S. District Court, the clerk kept a wood box on the counter and placed a copy of the new civil complaints in the box as soon as they came across the counter.
The intake clerk would review and stamp the new complaints, and take the check, in roughly one minute. The intake clerk would then place a copy of the new complaint in the wood box for press and public to see.
The point of all this is that the courts are open and supposed to be open. They function in an open, democratic government, and the wood box on the counter in federal court or the stack over in circuit court were the essence of that openness, displaying the new cases coming into the courthouse for all to see.
Then along came electronic filing.
The federal court didn’t miss a step. The U.S. District of Oregon pushed the new e-filed complaints into the docket right away, achieving the same result as the wood box on the counter. The new cases coming into the courthouse can be seen within roughly a minute of the filer submitting them across the virtual clerk’s counter.
Ah, but not so over in Multnomah County. There the clerks took the opportunity of the coming of e-filing to push press and public down the line past docketing, thus delaying access to the news. Oregon switched to e-filing on a statewide basis so the no-access-before-process policy --- identical to the one enjoined by the Ninth Circuit --- is now followed through the state courts.
When we politely pointed out to the folks in Oregon that the Ninth Circuit had affirmed an injunction of such a policy in Ventura, and noted that Oregon was inside the Ninth Circuit, Oregon officials were at first willing to give us access on receipt. But then something happened.
I suspect, but don’t know, that local clerks weighed in against the idea. A court official in the neighboring Northwest state of Washington described to me the rural clerks’ view they “owned” the court records. As “custodians of the record,” he said, the clerks have said they “own” the records in the course of resisting central state storage of local court records --- successfully.
So our request to the Oregon officials was refused. When we went into federal court recently to put some weight behind our request, it made no difference.
The administrators are willing to duke it out and pay the attorney fees for the other side if they lose --- pay with public funds --- even though it can run well into the millions of dollars. Such a request is currently pending in the U.S. District Court in Los Angeles where the bill for a decade of court officials fighting against traditional access has finally come due.
Maybe the eventual award in that case will help the Oregon folks think again about violating First Amendment law. But you would probably be wrong to think that.
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