Stage Set for 9th Circuit to Clear First Amendment Conflict on Press Access

PASADENA, Calif. (CN) – A tale of two rulings with similar facts but opposite outcomes is now headed to the Ninth Circuit in search of clarity on the traditional First Amendment right of access to new civil complaints.

Both cases filed by Courthouse News Service challenged the practice by some California court clerks of preventing the press from seeing new civil cases until the clerk went through a series of administrative tasks that can take a day or a week or more.

One judge said the practice violates the First Amendment, but another judge said it’s OK if the clerk did most of the administrative work within 8 business hours. The first ruling was appealed last year, and the second was appealed on Monday.

With those two appeals, traditional press access now lies in the balance in much of the western United States.

New complaints are a traditional source of news. When the clerks hold them back, they grow stale and their news value diminishes.

The issue is so fundamental to press organizations that a who’s who of national publications has supported Courthouse News, filing amicus briefs challenging the practice of withholding complaints during processing. The list include The New York Times, The Washington Post and the Los Angeles Times, as well First Amendment organizations and nearly every well-known newspaper and TV group in the United States.

Federal courts and an increasing number of state courts do not interfere with press access to new e-filed complaints, allowing for press review upon receipt and prior to processing.

That access is often provided through what is called an “electronic inbox,” which mirrors the wooden or plastic press bin into which paper complaints were dropped as soon as they crossed the counter.

That paper access was traditionally ahead of docketing, an older and simpler term that is being replaced by the more generic phrase “processing and acceptance” in the e-filing context.

The state courts in New York, for example, now provide access upon receipt and before processing, following a ruling in the federal court for the Southern District of New York late last year. In that legal battle, Manhattan state court clerk Milton Tingling insisted on processing the new e-filed cases before the press could see them.

The result was that a number of huge news cases could not be seen on the day of filing, including an action by then-candidate Donald Trump against Spanish language network Univision over its cancellation of his beauty pageant. The action was leaked to the New York Post, which was often a source of gossip on Trump’s real estate business in New York.

The Manhattan clerk defended his withholding policy by saying he had to check e-filed cases for domestic filings which are confidential in New York. But a court rule required that lawyers file domestic cases across the counter in paper form, undercutting his argument.

Since the December 2016 ruling by Judge Edgardo Ramos, a total of 22 out of the 24 county courts in New York that accept e-filing have begun providing press and public access to the new complaints upon receipt, before processing.

In California, many state courts traditionally provided similar pre-docketing access to paper-filed complaints. The clerk’s staff filled a press box with new complaints as they came across the counter, which local reporters checked at the end of the day.

But the press has weakened in recent decades, with some papers failing altogether, while a small coterie of California clerks – working with what was called the California Administrative Office of the Courts – became emboldened by the promise of new technology.

They adopted software called the Court Case Management System that was ultimately intended to replace paper with electronically filed court documents. While the half-billion-dollar project collapsed before reaching the e-filing goal, the few clerks who adopted the software started withholding access to the new complaints as they went through labor-intensive tasks tied to the new software.

That group included clerks in Ventura and Orange County. They cut off press review of new cases at the end of the day, without explaining why technological progress should result in a step backwards for access.

As a result, Courthouse News filed a federal complaint in 2011, challenging Ventura clerk Michael Planet under the First Amendment. The lengthy litigation, costly to both the news service and taxpayers paying the clerk’s legal bill, resulted in a Ninth Circuit opinion in 2014 that affirmed the importance of timely access to civil complaints.

“The news media’s right of access to judicial proceedings is essential not only to its own free expression, but also to the public’s,” Circuit Judge Kim McLane Wardlaw wrote for a unanimous panel. “It is thus well-established that the right of access to public records and proceedings is ‘necessary to the enjoyment’ of the right to free speech.”

The panel of Wardlaw and Circuit Judges Mary Marguia and John Noonan reversed a federal judge’s dismissal of the case. Ultimately, after a second Ninth Circuit opinion, U.S. District Judge S. James Otero ruled in 2016 in favor of Courthouse News, forbidding the Ventura clerk from withholding the new complaints while he processed them, whether the new cases were filed in paper or electronic form.

Despite its clear words, a set of clerks stonewalled Otero’s ruling. They continued to withhold the new cases as they processed them. In the meantime, Ventura’s clerk, backed by California’s Judicial Council, appealed the ruling.

That appeal is now pending before Wardlaw, Murguia and Circuit Judge N. Randy Smith, replacing Noonan from the original panel. The briefing on that appeal is now close to completion.

In the meantime, Courthouse News tried to extend the hard-won ruling from Otero.

It brought a First Amendment action against David Yamaski, the clerk in Orange County, who refused to provide press access before he was done with processing the new e-filed cases into an adapted form of the old CCMS software. The Courthouse News complaint used the clerk’s own records to show that he was withholding about half of the new cases on the day they were filed with resulting delays in access that extended from one day to a week or more.

But on a motion for a preliminary injunction, U.S. District Judge Andrew Guilford refused to follow Otero’s ruling. Guilford found it would be a burden on defendant Yamasaki to let the press see the new cases right away, and said it was OK to withhold the cases if a high percentage were processed “within 8 business hours.”

He distinguished Otero’s earlier ruling by saying it involved a smaller court.

A principal argument from the clerk in Orange County, like the clerks in Ventura and Manhattan, is that he must check for confidential filings. Sealed or confidential filings are rare, amounting to tiny fraction of the filings at the Orange County court.

Courthouse News argued that the duty to file them correctly lies with the filing lawyer, based on California court rules. In addition, the clerk has offered no reason why the small number of cases should not be filed at the counter in paper form, as they are in state courts such as New York, and as they are in federal courts.

“The confidentiality beast defendant warns of is, in fact, easily tamed,” wrote the Bryan Cave lawyers representing Courthouse News.

In filing a notice of appeal on Monday, Courthouse News set in motion the process for resolution of the issue of traditional press access to the new court records in a time when a few clerks in California have rolled press access backwards in the name of moving forward with technology.

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