US Judge in Decade-Long Struggle Affirms First Amendment Right to Access ‘On Receipt’

While a court clerk fought to the last ditch against press access, a box on the counter in Ventura’s state court stood as a symbol of access past and future.

Screenshot of U.S. District Judge Dolly Gee, during an interview with the National Asian Pacific American Bar Association.

LOS ANGELES (CN) — On the counter in Ventura Superior Court sat the ghost of access past, a white, plastic press box.

It came from the days of old when new cases were filed in paper and the local press was strong. But in 2011, when Courthouse News first challenged the Ventura court clerk on First Amendment grounds, it sat useless on the counter.

That press box and those on court counters all around the nation were meant to hold the new cases as they came into the court, when the news in them was fresh. But Ventura’s clerk, Michael Planet, had decided to docket the new cases first, and send some on to individual judges, before putting a few in the box.

That made the press box useless, holding a partial sampling of old news.

For reasons that continue to confound, Planet then used public money to hire a top-level national law firm to fight against press access, as though it were an existential battle. Like state clerks around the nation, he was, as Judge Henry Coke Morgan put it, “fighting to the last ditch.”

Late on Tuesday, the ditch was overrun.

“The Court will therefore adopt Courthouse News Service’s proposed language on the right of access attaching when complaints are ‘received by a court,’” said a ruling by U.S. District Judge Dolly Gee in the Central District of California, handed down Tuesday evening.

She went down the line in the long-running litigation of Courthouse News versus   Planet, laying down First Amendment principles that have taken a decade to fall into place.

The ruling that rung the First Amendment like a two-thousand-pound church bell made clear what was in many ways self-evident — that there cannot be two vastly divergent First Amendment standards among the courts of America.

Since the time electronic tech came to America’s courts, state courts and federal courts have followed different forks of the public access path. The federal clerks, supported by their judges, used the new tech to illuminate the courts.

While a majority of state court clerks, operating independently of their judges, used tech to put traditional press access in a dark closet and leave it there.

For example, a journalist traveling through the courts of the nation 15 years ago, before the electronic revolution, would find a press box on the counter in most state and federal courts — generally made of wood in the federal system and plastic in state courts.

It held the disputes of the region, great and small, over housing, water pollution, hurricane damage, speech, the cornering of commercial markets, government policy.

Sometimes the new complaints were simply placed in a stack behind the counter that local journalists would look through at the end of the day.

Those boxes and stacks could be found in state courts in Seattle, Albuquerque, Austin, Orlando, Cincinnati, Minneapolis, Indianapolis, Des Moines and points in between. And in all those places the box and the access it represented were taken away by clerks as they moved to electronic filing.

It was replaced, like it was in Ventura, by post-docketing access that kills the news in the new filings, that makes them, again in Judge Morgan’s words, “like stale bread, like stale anything.”

There are notable exceptions to this powerful trend — in Hawaii, Utah and Connecticut and individual courts in Nevada, California and Georgia — where state courts followed the federal First Amendment standard of access on receipt.

Out of the turbulence of the leap from the paper world into the electronic realm, two standards of First Amendment access appeared to evolve. The federal court version said the public and press have a right of access to the newly created public record when it is received by the court.

And the alternate state court version said the public and the press have no right of access until the newly created public record is safely cocooned by clerical tasks, and thus “officially filed,” a process that takes days and, in effect, shutters the record.

Judge Gee’s ruling on Tuesday made it clear that there is one standard. The decision has been a decade in the making. It falls like a great hammer in defense of an amendment that continues to be under siege by elected court clerks.

And it adds a fresh legion of law to bolster the retreating forces of the press who in state by state, court by court, have fallen back from a crowd of bureaucrats and administrators using the weapon of technological change to blow up traditional access, close off the public record, and in many states, sell it.

Local elected clerks in Texas, members of that crowd, have taken away traditional press access and now hold the new complaints well past receipt — precisely what Judge Gee and Judge James Otero before her said the officials cannot do. The added offense in Texas is that the clerks have combined with a top-100 private corporation to first lock up and then sell off the public record.

Courthouse News is currently challenging those restrictions in Houston before U.S. District Judge Andrew Hanen and in Austin before U.S. District Judge Lee Yeakel.

Moving over to Florida, elected court clerks have gone beyond any of their fellows by seizing control of the e-filing portal and extracting millions of dollars from that control.

But, in what amounts to a running battle between clerks taking over and making money off the public record and judges defending public access to the record, the Florida Supreme Court moved last week to eliminate a court rule that made the clerks responsible for private information in electronic documents — a rule that had given them an impregnable defense against any First Amendment challenge.

Any thought that Florida’s clerks would, as a result, see the light of the First Amendment would be quickly dispelled by the clerks themselves. They are already organizing to water down or eliminate the Supreme Court’s rule change before it goes into effect this summer.

Back in California, the Planet case that Gee brought close to conclusion on Tuesday evening was filed almost ten years ago. Filed in federal court, it became public the moment it was received by the federal clerk in Los Angeles. Illustrating the reasons behind the challenge, civil complaints filed in the Ventura court were held back for days or weeks.

The case then began to resemble what U.S. Judge Edward Leavy in Portland once called litigation “on a pogo stick.”

It jumped up and down between courts. The Courthouse News complaint was first knocked out of court by a federal judge in Los Angeles on the grounds that the matter should be left up to the state courts, a ruling later mirrored by the Chicago-based Seventh Circuit in nullifying a Courthouse News victory against the Chicago clerk.

The Ninth Circuit, however, reversed the lower court judge two times in the Planet case and transferred the action to Judge James Otero. All these events required briefs, exhibits, oral argument and the payment of millions of dollars in attorney fees. Ultimately Otero ruled in 2016 in favor of Courthouse News, saying the right of access attaches “upon receipt.”

The case once again traveled to the Ninth Circuit along with a companion case against the Orange County clerk. In those appeals, Courthouse News lawyers argued that, “Technology should illuminate the halls of government, not darken them.”

Out of those appeals came a seminal ruling, referred to as Planet III, handed down in January of last year. The key portion of Otero’s key ruling, finding that the right of access attaches on receipt, was upheld. The Ninth Circuit then returned the case to the Central District trial court for an amended judgment and a determination of attorney fees.

In doing so, the appellate panel led by Judge Kim Wardlaw pointed out that Courthouse News was the prevailing party. “Through this litigation, Courthouse News Service 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.

On behalf of Courthouse News, Jon Fetterly with the Bryan Cave law firm then proposed an amended judgment that included the portions of Otero’s ruling upheld by the Ninth Circuit.

“In Planet III, the Ninth Circuit settled the law applicable to this case. It affirmed the district court’s holding that a First Amendment right of access to civil complaints exists and attaches at the time of filing, and ‘rejected Planet’s contention that the right of access to civil complaints attaches only at the moment they become the subject of some type of judicial action,’” said the motion by Fetterly.

With him on the court papers were Katherine Keating, Rachel Matteo-Boehm and Roger Myers, all with Bryan Cave.

Traveling with them on the other side of the litigation’s long road, and arguing for the clerk, were Robert Naeve, Cary Sullivan and Erica Reilley, all with Jones Day.

“After nearly a decade of litigation, the Ninth Circuit’s detailed ruling in Planet III should have finally put this case to rest,” wrote Judge Gee. “Instead, Ventura Superior Court attempts to seize on what should be a routine procedural matter — implementing the appellate court’s mandate — to relitigate issues that either the Ninth Circuit already decided, or that the District Court already decided and which Ventura Superior Court failed to challenge on appeal.”

She overruled objections from the clerk’s lawyers who attempted to give clerks room to keep playing with the definition of the word “filed,” and continue to delay access by arguing that a case was not officially filed until it was docketed. Even though a new case is in fact filed at the time it is received, and stamped as such.

“Finally, although not discussed in its brief, VSC’s Proposed Amended Judgment changes the language to read that the right of access attaches when new complaints are ‘filed,’ as opposed to when they are ‘received by a court,’” said Gee in her 8-page judgment order. “Again, Planet III did not address the distinction between ‘filed’ and ‘received’ because VSC did not raise the issue, and so VSC abandoned any objection. The Court will therefore adopt CNS’s proposed language on the right of access attaching when complaints are ‘received by a court’ — which is consistent with the Original Judgment.”

The clarity of Gee’s ruling falls into the murk of a nationwide struggle that is hardly settled.

Only a month ago, in mid-December, the state of Maine, coming late to the tech revolution, put in place a rule that delays public access to new electronic filings until three days after service, which means that access will be delayed for weeks in many cases.

“No court record will be accessible by the public until three business days after the court clerk has accepted the submissions of both the case initiating documents filing of such record and proof of service of those documents on at least one defendant,” says Rule 4(A) of the Maine Rules of Electronic Court Systems.

The rule — on its face — defies the clear, simple and powerful First Amendment standard that says the right of access attaches “on receipt.”

It invites a challenge.

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