Metropolitan News-Enterprise


Tuesday, January 21, 2020


Page 1


Ninth Circuit:

Media’s Right to Timely Access New Filings Is Not Unfettered

Opinion Says There Is No Constitutional Injury to the Press Due to Overnight Delays Necessitated by Ventura Superior Court Staff’s Optical Scanning of Complaints


By a MetNews Staff Writer


The press has only a qualified right of timely access to newly filed nonconfidential civil complaints, the Ninth U.S. Circuit Court of Appeals held Friday, declaring that a mere day’s delay, at most, while the staff optically scans the documents is constitutionally permissible.

The opinion, authored by Judge Kim McLane Wardlaw, affirms in part and reverses in part a summary judgment granted by District Court Judge S. James Otero of the Central District of California in favor of Courthouse News Service (“CNS”) in what she termed a “decade-long battle to obtain immediate access to newly filed complaints from Ventura County Superior Court.”

Senior Judge N. Randy Smith wrote a concurring opinion in which he expressed agreement with the result but asserted that Wardlaw, who was joined by Judge Mary H. Murguia, erred in applying a “strict scrutiny” standard not required by U.S. Supreme Court precedent. Wardlaw disclaimed  having utilized that standard.

Challenged Courthouse Policies

When CNS initially filed suit in 2011 against Michael Planet, in his official capacity as court executive officer/clerk of the Ventura Superior Court, the court had a “no-access-before process” policy for newly filed civil complaints, resulting in significant delays between the filing of a pleading and its availability to CNS. After CNS filed suit, the court dropped the no-access before-process policy in 2014 and instituted a “scanning policy,” requiring court staff to scan new civil complaints before reviewing or processing them.

After the court adopted the new policy, the scanned filings could be viewed from 8 a.m. until 3 p.m., even though the courthouse remained open and court staff accepted new filings until 4:30 p.m. Complaints filed after 3 p.m. were scanned and made publicly available the next day.

Wardlaw’s opinion observes:

“The parties dispute what percentage of new complaints Ventura County made available on the same day as filing under the scanning policy, a dispute that arises from the 3:00 PM public closing time of the clerk’s office. Planet maintains that Ventura County provided same-day access to approximately 97% of filings. CNS counters that Ventura County scanned between “one-third and more than one-half” of complaints after 3:00 PM.”

Media’s Constitutional Right

Wardlaw wrote:

“The presumption of access to judicial proceedings flows from an ‘unbroken, uncontradicted history’ rooted in the common law notion that ‘justice must satisfy the appearance of justice.’”

She continued:

“The right of access is thus an essential part of the First Amendment’s purpose to ‘ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government.’”

Agreeing with Otero’s rejection of the Ventura court’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—an argument the Ninth Circuit rejected in an earlier opinion in the course of the litigation, Wardlaw nonetheless said:

“[W]e do not view that conclusion as demanding immediate, pre-processing access to newly filed complaints.”

The question, she noted, is “what amount of delay in making newly filed complaints publicly available is constitutionally justified?”

Scanning Policy Upheld

Wardlaw declared that the court’s formerly employed “no-access-before process” policy was unconstitutional, but that its scanning policy survived constitutional scrutiny. The jurist explained:

“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. After all, litigants are not uploading their complaints to the internet; they are filing them with a court, making them subject to judicial administration. 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.”

She said the Ventura court “has demonstrated that the overnight delay in access to complaints filed during the last ninety minutes of the court’s public hours was no greater than essential to manage necessary court operations under the circumstances existing at the time,” remarking:

“The First Amendment does not require us to second guess the careful deliberations the state court undertook in deciding how to manage scarce resources. We decline do so here.”

Wardlaw declared:

“[W]e affirm the district court’s grant of summary judgment as to the no-access-before-process policy, but reverse the district court’s grant of summary judgment as to the scanning policy. We vacate the district court’s injunction and award of fees, and remand for further consideration consistent with this opinion.”

Attorney Rachel Matteo-Boehm of Bryan Cave, LLP in San Francisco, who argued the case on appeal for CNS, observed that access to civil filings by CNS has been “generally very good” in the Los Angeles Superior Court, and “leaps and bounds better than in Ventura County before we filed suit.”

Mary Hearn, a public information officer for the Los Angeles Superior Court, said she is not certain precisely how long it takes between the e-filing of a nonconfidential civil document—which is done through a third party vendor before it reaches the Clerk’s Office for processing—but said that once the Clerk’s Office approves the filing, it is publicly accessible “within minutes.”

Hearn noted that there is additionally a “media access portal” to which press outlets can subscribe. Paying for the service allows for immediate and unlimited access to “filed and unfiled” civil pleadings, except during the limited period of time when the clerk’s office is actually reviewing and processing the filing, she advised.

The case is Courthouse News Service v. Michael Planet, No. 16-55977.

Amici in the case comprised the Reporters Committee for Freedom of the Press and 27 media organizations, including the Associated Press and the Los Angeles Times.


Copyright 2020, Metropolitan News Company