SANTA ANA, Calif. (CN) — It was in the lobby of a boutique Milwaukee hotel that I heard that on his own initiative a federal judge in Orange County was demanding that Courthouse News demonstrate it was a member of the media. The sua sponte order was a shock.
No judge had ever raised the issue because, after 30 years of publishing news, Courthouse News is obviously a member of the media and within the umbrella of First Amendment. It was late in 2017 and Courthouse News had just a couple weeks earlier filed its complaint against the court clerk in Orange County.
So I wondered if we should pull out, with the judge signaling his opposition so early and so loud and clear.
Our lawyers convinced me to stick with it, even as I saw a vast swamp of litigation and expense extending before me. Millions of dollars in attorney fees later, Judge Andrew Guilford in 2018 ruled against us. Two years later, his decision was reversed and vacated by the Ninth Circuit, rending the district judge’s decision a nullity.
“The district court’s preliminary injunction order, summary judgment order and order entering final judgment are vacated, and the case is remanded for further proceedings consistent with this court’s opinion in Courthouse News Service v. Planet, 947 F.3d 581 (9th Cir. 2020),” ruled the Ninth Circuit panel of Kim Wardlaw, Mary Murguia and Randy Smith.
After four years in the swamp of litigation in Orange County, on Tuesday afternoon, the long-sought grail of access in Orange County Superior fell into the media’s grasp. The clerk’s office opened an Electronic Media Inbox that gives the media the ability to read and make copies of new electronic filings as they are received.
It is the result of an agreement signed earlier this year between Courthouse News and the clerk in Orange County, where the clerk agreed to “Create and put into operation an ‘Electronic Media Inbox’ into which copies of new electronically submitted non-confidential civil unlimited complaints will be automatically deposited upon receipt by the Court.”
The agreement goes on to say, “CNS acknowledges and agrees that, by creating and providing media access to the Electronic Media Inbox as provided in this Agreement, OCSC shall have fully satisfied whatever obligation it may have under the United States and California Constitutions, and other federal and state laws, to provide prompt access to newly and electronically submitted civil unlimited complaints.”
Throughout the conflict, Courthouse News has been represented by John Amberg, Roger Myers, Rachel Matteo-Boehm, Jon Fetterly and Katherine Keating with the law firm of Bryan Cave Leighton & Paisner, while Orange County and the California Judicial Council were represented by a team from Jones Day that included Cary Sullivan, Robert Naeve, Erica Reilly and Nathaniel Garrett.
The media inbox in Orange County was set up through a revamped and reworked version of the old Court Case Management System, a half-billion-dollar effort by California’s Judicial Council to set up an in-house e-filing system. That statewide project was abandoned as its private developers continued to charge the state hundreds of thousands of dollars per day.
But Orange County’s clerk, David Yamasaki, persisted, and rather than go the expensive route followed by the many California courts that have signed contracts with Tyler Technologies, Yamasaki took over development of the software and spent the funds needed to make CCMS work.
In giving the media access on receipt, Orange County Superior joins Los Angeles Superior, the biggest court in the nation, which has set up a Media Access Portal that also gives access to new e-filings as they are received. The MAP is based on programming by local developer Journal Technologies, an outgrowth of the Los Angeles Daily Journal newspaper.
Separately, Napa Superior Court opened a Press Review Queue using Tyler’s software on Monday. It joined courts in Monterey, Santa Clara, Fresno, Kern, Santa Barbara and Riverside which are also providing access to new filings on receipt. While San Francisco Superior is working on it, other courts in California are in the processing of settling First Amendment litigation by providing similar media queues.
Within California, three different software systems are providing access on receipt in addition to the four federal district courts in California which provide the same on-receipt access to press and public through the federal PACER system.
The current movement in California to grant traditional access — which took place right after paper complaints crossed the intake counter — in the electronic context comes as clerks around the country are fighting like the devil to not provide such access, using any legal argument that might stick.
Clerks in Oregon, Idaho, Texas, Missouri and Vermont, have all filed motions to dismiss First Amendment actions challenging access delays, using the doctrine of abstention as well as trotting out a parade of horribles suggesting privacy will be violated if the press were to see cases before clerical processing. Even as the federal courts where they make their motions are giving the press and public the very access they are arguing against.
Most recently in New Mexico, on a preliminary injunction motion by Courthouse News, a federal judge enjoined state administrators who were holding back access. But the judge also concluded that traditional paper access was post-processing access, and thus e-file access to cases filed after noon could be delayed until the next day. The Courthouse News lawyers must, as they move toward summary judgment, work to undo that mistake by showing that in fact reporters traditionally saw new paper cases filed right up until the filing window closed for the day — well before docketing which is now translated as “processing.”
But just as the abstention rulings have done, the new New Mexico wrinkle in First Amendment law gives clerks another argument they can toss against the federal court wall to see if it sticks.
The original Orange County complaint was filed in 2017 against clerk Alan Carlson, a longtime opponent of press access. He retired, however, just before the action was filed and so the complaint was filed anew against Yamasaki. The complaint followed an interim ruling in 2016 in the mega-litigation between Courthouse News and the court clerk in Ventura, Michael Planet. That case went to the Ninth Circuit three times over ten years of litigation.
The Planet case came to an end last year with the Planet III opinion, affirming the principle that the right of First Amendment access attaches to a new filing at the time of the court’s receipt of the filing. A subsequent order by U.S. District Court Judge Dolly Gee in Los Angeles enjoined Planet from withholding access for processing. A motion for the attorney fees that piled up in ten years of legal trench warfare has been pending since March.
On the road to Planet III, U.S. District Judge James Otero granted summary judgment in favor of Courthouse News in 2016. Courthouse News followed that decision with its complaint in Orange County.
“This action simply seeks the same relief granted in Planet — timely access to new civil unlimited jurisdiction complaints upon receipt for filing, prior to processing,” said the 2017 Orange County complaint. “As Planet held, it has been a longstanding tradition for both state and federal courts to provide reporters who visit the court every day with timely access to new complaints upon their receipt by the court for filing. This access upon receipt ensures that interested members of the public learn about new civil litigation while the initiation of that litigation is still newsworthy.”
That tradition remains under attack and is now being redefined to mean delayed, post-processing access. In Orange County, the first access takeaway was almost twenty years ago when Orange County’s award-winning then-clerk Alan Slater — now a senior adviser to the Judicial Council of California — started scanning new filings, and pushed the press back to next-day access.
After nearly twenty years of fighting. through letters and meetings and litigation, for the return of traditional access in that court, the goal was reached Tuesday with the opening of a Media Electronic Inbox that provides the ability to see and make copies of new public filings as they are received.
A note emailed by Courthouse News lawyer Jon Fetterly at 4:33 Tuesday afternoon relayed a message from the clerk’s lawyer Cary Sullivan sent a moment earlier: “The media inbox is now open.”
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.