After years of legal contest with the huge Southern California court of Orange County, a deal has been struck and the press will once again have access to the new civil cases when they cross the counter, one that was physical and is now virtual.
SANTA ANA, Calif. (CN) — A long time ago, in late 2002, a supervisor at the superior court in Orange County told a group of reporters they would no longer be seeing the new civil complaints at the end of the day.
The clerk had decided to scan the documents first. The supervisor, named Connie, told the reporters they would see the new cases the next morning. But it did not work out that way.
The first chance to see the cases soon drifted to two and three days back behind the date the new cases crossed the counter. And by then it was too late. It was, as Judge Henry Coke Morgan put it, “like stale bread, like stale anything.”
And there things stood as technology shifted from scanning to electronic filing and still the delays held. Technology was not exactly illuminating the halls of government, it was darkening them.
After years of letters and meetings asking for a return of timely access, Courthouse News filed a First Amendment action four years ago. The case slogged through 216 docket entries and millions of dollars in attorney fees to reach a ruling in favor of the clerk — a ruling that was promptly shot down by the Ninth Circuit.
And then, in the fall of last year, the two sides started to talk.
With the result that on Thursday U.S. Judge James Selna lifted all deadlines in the litigation between this news agency and the Orange County clerk based on a motion that attached a settlement agreement.
In the deal, the clerk agreed to “create and put into operation an ‘Electronic Media Inbox’ into which copies of new electronically submitted nonconfidential civil unlimited complaints will be automatically deposited upon receipt.”
Significantly, Orange County Superior remains free to change technology in future years — “so long as it continues to provide access upon receipt to new nonconfidential civil unlimited complaints.”
For its part, Courthouse News agreed to give up its claim for attorney fees which had reached $6 million and climbing.
The agreement was negotiated at length between John Amberg with the Bryan Cave law firm on behalf of Courthouse News, and Cary Sullivan with the Jones Day law firm on behalf of Orange County Superior and, by all appearances, the Judicial Council.
It leaves pending a companion case between Courthouse News and Ventura’s court clerk, Michael Planet, which was argued in the Ninth Circuit alongside the Orange County case and resulted in a ruling referred to as Planet III.
Planet III held that the right of access to new complaints attaches when they are filed. The filing date is determined by the date of receipt which is also when a new complaint becomes a public document.
The Ninth Circuit panel led by Judge Kim Wardlaw then remanded the Planet case last summer to the trial court, for a determination of attorney fees.
“Significantly, however, through this litigation, Courthouse News Service (CNS) established that a First Amendment right of access to civil complaints at the time of filing exists, and that this right is reviewed under the Press Enterprise II standard,” said the Ninth Circuit’s order. “Because CNS succeeded in gaining ‘some of the benefit [it] sought in bringing suit,’ it is the prevailing party.”
The matter was submitted to District Court Judge Dolly Gee in Los Angeles last August.
Over the course of the nine years that the Planet litigation has been ongoing, a big majority of California e-filing courts have given the press the ability to see new civil cases on receipt which is the “time of filing.”
But a minority of clerks in California are holding out, insisting on first docketing the new e-filed cases which delays press access beyond the date of filing. One of those is the clerk in San Mateo Superior who is now defending a federal First Amendment action filed last week by this news service.
While the Ventura litigation against Planet has been the mother of all access cases in California, the Orange County litigation comes in a close second in terms of the extraordinary amount of evidence amassed and argument made.
It all started back in 2002 when Alan Slater, an award-winning bureaucrat, was enthusiastically adopting new technology that would soon engulf the state courts of the nation. He had a pugnacious and confrontational view towards the press.
News outfits — including the Los Angeles Times, the Orange County Register, City News Service, the Daily Journal and Courthouse News — had desks in the Orange County Superior Court press room which had been in place from the time the courthouse was built. And their reporters had access to the new civil filings at the end of the day.
Slater put an end to both. He closed the press room and shut off access to the new filings.
The ritual of checking the new complaints had taken place in the records room which was part of a one large room that included the intake windows. The records area was painted in institutional green and the room held a set of chairs to which a small desk was attached, like those in classrooms. The access was described by this writer in a federal court declaration which, as a testament to the ferocity of the litigation, was 66 pages long.
“In 1995, I went to the OCSC courthouse and — along with reporters for The Orange County Register, Los Angeles Times, Los Angeles Daily Journal and City News Service — I checked a wooden box at the back of the records room containing that day’s new civil complaints. The records room was next to the intake counters. I watched as a records room clerk gathered up the new complaints from the intake clerks at the end of the day to give to reporters,” wrote this author. The passage was necessitated by the denial from the clerk and his lawyers that any tradition of access had ever existed.
But the first incursion of electronic tech came up against that age-old ritual. In early 2002, Slater bought a bevy of scanning machines and put scanning and docketing in front of press access.
Reporters for the LA Times joined this news service in protesting the take-away, but their institutional leadership was unwilling to associate with an upstart news service in confronting the powerful clerk.
Slater later retired and an equally confrontational bureaucrat, Alan Carlson, took over. Carlson continued the court’s intransigence, enabled by its judicial leadership, and went on to malign the press as an institution in national conferences of court administrators, such as those in Williamsburg during the last decade.
The Orange County clerk became part of a small coterie, also including the Ventura clerk, who cooperated with what was then the Administrative Office of the Courts and is now called the staff of the Judicial Council in its effort to develop an in-house e-filing system through consultants.
That initiative turned into a $500 million-dollar fiasco called the Case Management System or CCMS. The software project was deep-sixed by the Judicial Council under pressure from the Legislature in 2012.
But it lived on in Orange County Superior and its sister court San Diego Superior. A year later, in 2013, Orange County became the first state court in California to mandate electronic filing of civil documents by lawyers.
Based on statements made by Orange County staff during the Courthouse News litigation, the Judicial Council staff refused to turn over computer code underlying CCMS to the two courts still using it — a confounding policy, given that it was antiquated and getting more so by the year.
Meanwhile, press access in the court continued to run one to three days behind the filing date, a natural product of the cumbersome clerical requirements of docketing the new filings in the antiquated CCMS software.
After prevailing in May 2016 against Ventura clerk Planet in a summary judgment ruling by U.S. Judge James Otero, Courthouse News prepared an action against Orange County’s Carlson. But he slipped out the door in late 2016 and retired just as the action was about to be filed.
Unlucky inheritor of years of conflict between the press and the court was David Yamasaki, who took the clerk’s job in December 2016 and one month later became the defendant in a federal First Amendment action.
Yamasaki and from all appearances the Judicial Council staff then fought with all their might against timely press access. They employed lawyers from the white-shoe firm of Jones Day who used their full range of litigation tactics in a campaign to slow and defeat this news service, including the outright denial of provable facts such as the tradition of access.
Those tactics contributed to the enormous legal bills rung up during the four years of conflict.
The firm was aided by luck at the assignment wheel. The Courthouse News action fell to U.S. Judge Andrew Guilford who initiated his handling of the matter by demanding that Courthouse News demonstrate it is a member of the media, something no judge has ever questioned in the extensive history of this new service’s reporting and litigation.
The case at that point entered into a swamp of litigation with 216 docket items and an outcome foretold. Guilford forced the matter into an abbreviated trial and ruled: “OCSC’s complaint review policies and practices doesn’t violate the First Amendment right of access, OCSC is therefore entitled to final judgment.”
It was an odd sensation during the hearings in front of Guilford for this writer to walk by the federal courthouse press room on the ground floor, knowing that the clerk’s staff had every day pushed new paper complaints onto the counter in the press room since the time the Santa Ana courthouse was constructed. And then ride an elevator up to a courtroom where lawyers on behalf of the clerk were arguing that no tradition of access existed, an argument that the federal judge, in his rulings, bought.
“Technology should illuminate the halls of government, not darken them,” argued Courthouse News on appeal. The team representing this news agency on the federal battlefield included John Amberg, Rachel Matteo-Boehm, Jon Fetterly, Katherine Keating and Roger Myers, all with the Bryan Cave law firm.
The Ninth Circuit summarily reversed in January 2020.
“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),” wrote the Ninth Circuit panel in a brief but published ruling.
In the meantime, Guilford had quit the bench and the case was assigned to Judge Selna in the Orange County Division of the U.S. Central District. The underlying code for CCMS had also been transferred to Orange County Superior. And an amended complaint that laid out the ongoing delays was filed by Fetterly for Courthouse News in May.
“The past three years have seen an increasing number of courts across the nation provide the press with pre-processing access to new civil complaints through review queues, including, in California alone, the Superior Courts of Fresno, Kern, Monterey, Los Angeles, Santa Barbara and Santa Clara,” said the amended complaint.
It pointed out that LA Superior, the biggest court in the United States, and a neighbor to Orange County, was providing a “media access portal” that gave the media access to new civil e-filings upon receipt.
“Orange County Superior Court, on the other hand, continues to insist that it must first process new, non-confidential complaints before making them available to the press or public. OCSC claims to have a ‘state of the art’ e-filing system, and it is currently reconfiguring its case management and e-filing systems,” said the amended complaint. “OCSC nevertheless refuses to provide timely access to new civil unlimited complaints despite the ability to do so.”
In keeping with the pace and hard-fought nature of the litigation over four years, settlement negotiations began in the fall and lasted into January. They culminated in a lengthy deal where Orange County Superior agreed to provide access, now and in the future, “upon receipt.”
After almost twenty years of struggle during the epochal transition from paper to electronic, and even though the reporters that covered the court have long gone, the third biggest court in California will once again be giving a new group of journalists access as soon as the new complaints cross what is now the virtual counter.
And technology will illuminate the halls of government.