Twin Cases on Press Access at Crossroads in 9th Circuit

PASADENA, Calif. (CN) – Twin cases on First Amendment press access will either proceed separately through the Ninth Circuit or come together before the same panel of judges, depending on the outcome of a motion filed Wednesday.

The two cases both challenge a new practice by a few California clerks of denying press access to the new cases until they are put through a set of administrative procedures. As a result, the news in the filings dissipates.

In one case, a federal judge ruled that clerk Michael Planet’s denial of access in Ventura violated the First Amendment. In its sister case, a different federal judge ruled that clerk David Yamasaki’s denial of access in Orange County did not violate the First Amendment.

The Ventura case is currently in front of a panel of judges who have considered the underlying issues twice before as the case has gone up and down the appellate ladder. The Orange County case, on the other hand, is a newcomer to the appellate court.

Wednesday’s motion argues for assigning the new case to the already formed panel of judges hearing the long-running Ventura case.

“The panel should hear both appeals because if the Planet order is correct, then Yamasaki cannot stand,” said the motion by Courthouse News.

The basic facts and defenses in the two cases are alike. But Ventura uses the older paper medium for filing cases, while Orange County uses the newer e-filing medium most of the time.

“Given the importance of ensuring that First Amendment rights apply equally across the paper and digital worlds, this weighs heavily in favor of hearing the cases together,” said the motion by Bryan Cave lawyers Rachel Matteo-Boehm, Roger Myers, Katherine Keating and Jon Fetterly.

They noted that the order by U.S. District Judge S. James Otero in the Ventura case said specifically that it applies “regardless of whether courts use paper filing or e-filing systems.”

The Orange County clerk had not taken a position on Wednesday’s motion by the time it was filed. The clerk is represented by Robert Naeve, Jaclyn Stahl and Craig Stewart with Jones Day.

Demonstrating the difference in effect between the two lower court rulings, new complaints filed in Ventura are now seen by the press without delay nearly 100 percent of the time. Cases filed in Orange County continue to be withheld about 50 percent of the time.

A single case against amusement park Knott’s Berry Farm illustrates those effects.

The complaint was filed on a Monday at 4:05 p.m. in Orange County Superior Court.

But the clerk withheld the case for processing. As is his policy, he also kicked everybody out of the records room right at 4:00 p.m., while his staff continued processing cases.

The Knott’s case was brought by the father of a child who was injured on the Log Ride. His complaint says California safety officials had repeatedly warned Knott’s about the ride and it had caused injury to children in the past.

The father asked for punitive damages, saying the park’s management was putting profits from a popular ride ahead of safety.

The LA Times, the Orange County Register and Courthouse News Service all reported on the case, but all reported late because the clerk withheld the case for processing in addition to shutting down the records room.

Both the withholding and the early exclusion from the records room would have been contrary to the order in the Ventura case – but both were OK under the order in the Orange County case.

The legal battle against the policy of withholding the new complaints has a long history.

For decades past, courts including Ventura and Orange County kept a press bin in which the day’s new complaints were placed for review by local reporters. The same was true in federal courts in California.

But in the early 2000s, a select group of administrators in California jumped on the bandwagon leading to electronic filing. In their embrace of a new technology, they pushed press access backwards, forcing reporters down the line behind the docketing of a new complaint, or processing, as it is now called.

In essence they moved the standard for press access backwards while moving forward towards a new technology.

In contrast, the federal courts and a growing number of state courts kept in place the traditional paper standard of access but adapted it to the new technology. They now give the press and public access to the newly e-filed documents as soon as they are received, keeping public access in its traditional spot ahead of processing.

As one aspect of press freedom, the issue has become a rallying point for news organizations. A long list of the best-known news groups in America filed an amicus brief supporting the order in favor of press access in Ventura.

“Immediacy has always been an essential component of newsworthiness,” said the brief signed by the New York Times, the Los Angeles Times and The Washington Post, among a host of news groups and First Amendment organizations. “A delay beyond timely access irreparably harms the public’s interest in learning about cases pending before the courts.”

The battle between the press and a few court administrators has already gone up to the Ninth Circuit twice and is now returning in a double-barreled format.

On one of those earlier trips, the panel of Circuit Judges Kim Wardlaw, Mary Murguia and John Noonan reinstated the Ventura case, saying, “There is no doubt that CNS itself has alleged a cognizable injury caused by the Ventura County Superior Court’s denial of timely access to newly filed complaints.”

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