The Dicta: Guesswork About Press Access

The recent Ninth Circuit ruling called Planet III is on many fronts a win for Courthouse News in its 10-year battle for access to court filings. But dicta pushed into the opinion will give comfort to local officials opposing access for years to come (it already has).

What bothered me about the dicta was that it involved guesswork.

Take this sentence from the opinion: “Even in this era of electronic filing systems, instantaneous public access to court filings, especially complaints, could impair the orderly filing and processing of cases with which clerk’s offices are charged.”

Really?

The Ninth Circuit itself and every federal district in California currently gives access to new electronic filings on receipt. Yes, instantaneously.

So where did that conclusion come from. The record in the Planet case concerned Ventura Superior, a court based entirely on paper filing. Thus the conclusion about electronic filing had no other place to come from but the hip pocket.

Almost all the federal courts give public access to electronic filings as soon as they get through the automated intake software, which, for a new case, assigns a new case number. The software serves the role of the intake clerk. No human looks at or touches the filing before it becomes public.

For example, Elon Musk filed an action against Alameda County last weekend, late on Saturday when clerks are not at work. The case over pandemic restrictions on the Tesla factory in Alameda County became public automatically upon its receipt. Courthouse News reporter Maria Dinzeo spotted it early Sunday morning and wrote an article that we published a couple hours later.

The Northern District’s e-filing software pulled that case in and made it public in the blink of an eye. Does that immediacy, in the words of the dicta, “impair the orderly filing and processing of cases.”

Apparently not.

Not only do almost all federal district courts give on-receipt — read instantaneous — access to e-filed documents, a growing number of state courts do, as well.

Hawaii, for example, has long had a strong policy of access to new paper filings, laying them out on a table for the public to see in courts on all the different islands. Moving to mandatory e-filing last fall, Hawaii’s courts stuck with that philosophy, and, like the federal courts, set up an auto-accept system that gives the public access upon receipt.

So, from one piece of guesswork about the effect of fast access, the dicta moved to a second. And I think the two are related. The dicta conveys an impression of the press, in thought if not in so many words, as a bunch of demanding little brats.

“The First Amendment does not require courts, public entities with limited resources, to set aside their judicial operational needs to satisfy the immediate demands of the press,” says the dicta. Reporters do not run around making “immediate demands” that public entities must “satisfy” then and there. They would get nowhere.

Patience and persistence are the attributes of a good reporter.

But if one starts off assuming the press is unreasonable then one easily jumps to the next conclusion that immediate access must also be unreasonable. When, in the e-filing world, it is in fact quite reasonable, and, to use the formula of Judge Henry Coke Morgan Jr., quite “practicable.”

And it may be that Morgan’s opinion from the Eastern District of Virginia is having a knock-on effect here in California.

Reacting to the pandemic that swept into the nation and the courts, the Northern District of California published a notice that said, “Following recent guidance from the Judicial Conference of the United States … members of the press and public will be permitted to hear and/or observe telephonic and video hearings, free of charge, to the extent practicable.”

Merriam Webster defines the word practicable as “capable of being put into practice: feasible.”

And I remember when Judge Morgan first talked about his proposed solution from the bench — he said he had spent some time thinking about it. I figured he had spent the time working out a formula that would give the press access on the day of filing, without setting up a red line that was unfair to the clerks.

So, contrary to guesswork underlying dicta in Planet III, it is eminently practicable to provide instantaneous access “in this era of electronic filing,” because the federal courts are already doing it.

Oh, and we in the press corps are not so unreasonable.

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More stories and columns on the Virginia trial:

Presumption and Fact: The Ask for Access  *  ‘CNS’s View’ Accurately Told  *  Access Solution: The E-Inbox  *  Access Law in the Electronic Age  *   Bread and News  *   Flip Side of Court Tech  *   First Amendment Right to See Court Documents on Day of Filing  *   Tradition of Same-Day Access  *   The News Cycle

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