SAN JOSE, Calif. (CN) – Long ago journalists walked behind the counter in San Jose’s main courthouse, in the heart of the Silicon Valley, and reviewed new civil filings in a cardboard box on an empty gray desk. Journalists from newspapers large and small checked the box at the end of the day.
Then late in the last century, the court turned inward, withholding the filings for days while journalists were pushed outside the counter. The court cycled through presiding judges and clerks who corresponded and met with the press, promised to provide better access and ultimately reneged on those promises.
But like a set of giant gears, the structure of court administration in California rotated.
And in the new year, the cycle of access in Santa Clara Superior turned again and the main court for the Silicon Valley is once more allowing journalists to see the documents as soon as they arrive, behind the virtual counter, in a virtual box.
The return of access comes with the transformation of court documents from analogue to digital, from bits of wood to electronic bits, but it is not a necessary part of that change. The switch from paper to electronic can also cast the courts further into shadow, depending on who is in charge.
For roughly the last twenty years, those at the helm of the project to modernize the courts in California were driven by an evident compulsion to exert control over the newly filed documents before they could be seen by journalists. They insisted on “processing,” essentially a long list of clerical tasks, before the press could see the new court records. By the time they were done, the news in the new filings was old news.
The bureaucrats, widely perceived as arrogant and privileged, looped through justifications and quiet rule changes to make it appear that the withholding was both right and good.
But something happened on the way to a unified tech system for the courts in California. It turned into a boondoggle, and fell apart. As the art of software development moved rapidly forward, development of a unified system, called the Court Case Management System, had stayed stuck in technology from the last century.
The breakup of the half-billion-dollar statewide project caused a sudden burst of smaller, court-by-court projects to redo the way millions of documents are received, stored, and read by those with roles in the legal system, the lawyers, the clerks, the judges.
The result was that individuals in those courts had the freedom to open their courts to the press and all those interested, allowing them to see the new stuff as soon as it came in the virtual door. A former presiding judge and a clerk in Fresno were the first to open that door and allow the press to see all the new electronic filings as soon as they hit the court.
The judges and clerk in Kern Superior, based in Bakersfield, were the next to open up the electronic filings to journalists as soon as they were received. They controlled the switch to electronic documents in a way that returned press access to what it had been when newspapers were strong, and the local reporter was recognized as a chronicler of daily events at the courthouse.
And then along came the big dog, Los Angeles Superior, which is the court for 10 million people and the unchallenged behemoth of the nation’s courts. Its programmers set up a media portal that gave reporters a daily view onto hundreds of new records as soon as they arrived at the court, when they were hot off the e-filing wire.
And now Santa Clara has done the same, bringing court access to a tipping point in California where courts representing roughly half of that state’s population have channeled the reformation of the medium through which public records are filed in a way that brings light into the halls of government.
That last change of heart, however, took some persuasion. Last fall, this news service filed a federal action in the San Jose Division of the Northern District of California against the Santa Clara clerk, based on a single count under the First Amendment.
“Defendant’s practice of withholding newly filed civil unlimited complaints from press and public view until after administrative processing deprive Courthouse News Service, and by extension its subscribers, of their right of access to public court records secured by the First Amendment to the U.S. Constitution,” said the complaint.
But the clerk and her counsel soon agreed to provide members of the press with access to the new filings when they were received. A notice filed in federal court last month by Courthouse News dismissed its own case, “because the defendant is currently providing access to new e-filed civil complaints by the end of the day on which they are filed, allowing the news to be reported in the same news cycle as the filings are received.”
While the trend in California is swinging towards quick access for journalists, one court continues to hold out for the shade, for holding documents in obscurity. Orange County Superior has fought doggedly to process the new cases first and hold them back until it decides to release them.
In a recent week, for example, the Orange County clerk withheld three quarters of the new cases for two and three days, kept them in the dark. So two or three news cycles had revolved through the news ecosystem by the time the filings could be seen, making the news they contain as stale as a three-day old baguette.
It is then not surprising that the clerk is currently locked in legal battle with Courthouse News. Last fall, a federal judge in Santa Ana ruled in favor of Orange County on a First Amendment challenge, and that ruling is now on appeal to the Ninth Circuit.
A similar case brought earlier by Courthouse News against the clerk in Ventura Superior went the other way, with a federal judge in Los Angeles ruling in favor of the news service. That ruling is also pending on appeal before a panel made up of Ninth Circuit judges Kim Wardlaw, Mary Murguia and Randy Smith.
The different path taken by the clerk in Santa Clara Superior, letting reporters see the new filings as soon as they crossed the virtual counter, had the same effect as lifting the shades on the Silicon Valley courthouse. Filings that had been regularly held away from the press for days can now be seen as soon as they arrive.
A new complaint against Google over a movie called “Airplane Mode,” for example, was reported on the day it was filed earlier this month. The complaint said Google used a morals clause to avoid paying licensing fees for the movie which starred Logan Paul, who has apparently gained a quantum of celebrity on YouTube.
The case is just one of the many labor and intellectual property actions that involve giants of the internet, often fighting each other, brought in the Silicon Valley courthouse.
The place is in some ways a stage on which press history has played out. From a time when journalists once held some sway and could walk freely through the gated areas of the courthouse, they fell into a 20-year winter of access where they were fenced away from the cardboard box that held the court’s newly arrived written proceedings.
And ultimately the journalists walked away from that old and potent source of news. Now through a new technology and a new attitude, time’s wheel has turned in Santa Clara Superior, and old-fashioned, traditional press access has been restored.