SAN FRANCISCO (CN) — American courthouses have for a long time worked like a news bakery where judges and juries decided conflicts large and small, over water, speech, earthquakes, fires and virtually all forms of calamity that befall mankind. And beat reporters roamed the courthouse covering those conflicts for a public audience.
The family of a drowned sailor sued the government over a nighttime tragedy in San Pedro where a nuclear sub snagged a tugboat’s line and dragged the boat down into the sea. Or the government sued stock rating agencies over the mortgage crisis.
Just a couple examples of the goods coming out of that news bakery.
From the courthouse newsrooms that now stand mostly empty, reporters would go around to the clerk’s office at the end of the day and see what fresh items had been put out that day. They checked the judge’s decisions and the new cases, the new disputes that were just filed.
But in the great convulsion of communication that happened over the last twenty years, much of the world moved onto a web of computers and massive cables that collectively became the internet. And in that upheaval, that was like a pandemic to newspaper journalists, a conclave of state court clerks moved to shutter the bakery.
They operated under the aegis of privacy, a vague notion that emerged as a reaction to the very same power that was destroying newspapers. It coagulated into a philosophy called “practical obscurity,” the idea that information used to be hard to find in paper files so it should also be hard to find on the internet.
While the practical obscurity movement has largely been discredited and abandoned by judges, it lives on among court administrators who use its main tenet as a frontal defense against timely access.
They say they must first check for privacy violations. Even though that is not their duty — which belongs to the filing lawyer — and even though it is a practical impossibility for court workers to read through and redact the thousands of documents filed every year in even a moderate-sized California court.
Yet clerks cling to the fiction.
One of them is the clerk of San Mateo Superior, a court built in 1956 set in an affluent area of 700,000 people just south of San Francisco. Court officials there have rejected a Courthouse News request for on-receipt access, citing privacy among other arguments.
So on Friday, Courthouse News challenged clerk Neal Taniguchi’s no-access-before-process policy with a First Amendment complaint filed in U.S. District Court for the Northern District of California.
“The First Amendment provides the press and public with a presumptive right of timely access to newly-filed civil complaints that attaches when the complaint is filed,” said the complaint. “In Planet III, the Ninth Circuit recognized that timely access to new civil complaints is essential to ensure that news of civil disputes reaches the public ‘while it is fresh,’ when it is most likely to become the subject of public discussion.”
The federal complaint was filed by Jon Fetterly in the San Francisco office of the Bryan Cave law firm.
“The purpose of the suit is to enforce Courthouse News’ First Amendment rights to timely access to new civil complaints,” said Fetterly. “The San Mateo court clerk’s current policy and practice is to withhold access to new complaints until after administrative processing which results in delayed access.”
San Mateo’s courthouse boasts an ornate and spacious interior appointed with dark wood railings and bannisters. In the past, when new cases were filed in paper form, journalists would go to the clerk’s office on the first floor and push through a low gate in a long, wood railing that separated the staff from runners coming in to file documents.
Behind the gate, at a gray table, sat a bin that held the day’s new cases. In other words, the court was providing classic press access to new paper complaints. Then in June 2020, San Mateo Superior required that lawyers file their documents via the internet with a pdf rather than walk into the courthouse with paper in hand.
At the same time, the clerk adopted a no-access-before-process policy and pushed the news in the new electronic filings behind a curtain of delay. He has held to that policy even though the new e-filings are filed when they are received.
When news events are held within the bowels of a court bureaucracy for a day, or two, or three, they are pushed aside for the day’s new news and most often fall into the dustbin of old news. Put simply, they don’t get reported.
The news cycle operates on a daily rhythm where events happen during the day, are quickly reported by journalists, and then consumed by the public that night. The world then drops into a fitful sleep, and the whole road show starts up again the next morning.
For example, the Courthouse News complaint itself became public as soon as it was received by the federal clerk — within that day’s news cycle — in stark contrast to the delayed access in San Mateo where the new cases are held back for “processing.”
“The vast majority of federal courts and many state courts configure their e-filing and case management systems to automatically release nonconfidential civil complaints to the public at large the moment the court receives them,” said the Courthouse News complaint. “A growing number of state courts — including Los Angeles, Santa Clara, Monterey, Santa Barbara, Fresno, and Kern County Superior Courts — provide the same on-receipt access.”
The complaint was pointing out that the withholding of access in San Mateo was entirely willful. Courts on either side, in San Jose and Monterey, give the press access to the new public filings when they are received, like the overarching federal court in the region.
“Numerous courts across the country including many in California provide pre-processing access to new civil complaints. Including neighboring state courts using the same the e-filing software as the San Mateo court,” said Fetterly.
A key point in his complaint is that all three of those state courts — San Jose, Monterey and San Mateo — use the Odyssey software system from Tyler Technologies. Clerks in two of them filled out a form asking Tyler to install a press review queue as a service “ticket,” without a separate charge.
San Mateo’s clerk has refused.
He is not alone. A number of smaller courts in California follow the San Mateo credo and hold back the new filings for processing. They include Sonoma, Stanislaus, Yolo, Merced and Santa Cruz.
In addition to the privacy argument, those clerks say they don’t have to let reporters see the new filings right away, that it’s a matter within their prerogative. “I am not aware of any legal authority for the court to provide access to the pre-filed documents you described in your letter and request,” wrote the clerk in Sutter Superior.
In fact, the documents are “filed” when they are received, not after processing. Those no-access-before-process courts cover California counties with a total population of 2 million.
Standing in the other corner, a group of California courts serving a total population of roughly 18 million people gives access upon receipt. They include the great mastodon, the King Kong of state courts, biggest in the nation, Los Angeles Superior, along with superior courts in Kern, Fresno, Monterey, Santa Barbara and Santa Clara.
Providing a massive boost to that momentum, the third biggest court in California, the state court for 3.2 million people, Orange County Superior, agreed this week to give press access to nonconfidential filings “upon receipt,” for the near and distant future.
Those state courts join all four federal district courts in California, from north to south, central to east, that in the new medium provide old-school access, as soon as the cases cross the virtual counter.
The complaint filed Friday against San Mateo’s clerk makes a single claim:
“Defendant’s actions under color of state law, including without limitation his policy and practice of withholding newly filed civil unlimited complaints from press and public view until after administrative processing, and the resulting denial of timely access to new civil unlimited complaints upon receipt for filing, deprive Courthouse News, and by extension its subscribers, of their right of access to public court records secured by the First Amendment to the U.S. Constitution.”
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