Public access to court filings case needs a trial, judge rules

SANTA ANA -- A lawsuit over what constitutes timely public access to state court filings is headed to trial after a federal judge confirmed Wednesday that dueling statistics prevent him from determining whether delays longer than a day are unconstitutional.

While U.S. District Judge Andrew J. Guilford said the First Amendment doesn't require Orange County Superior Court civil complaints to be made publicly available the same day they are filed, he said he's unable to determine if delays longer than a day are unconstitutional, in part because key figures presented by the plaintiff are "flawed and unreliable."

The case is one of several that Bryan Cave Leighton Paisner LLP attorneys are pursuing against state courts across the country on behalf of Courthouse News Service.

It's attracted amicus briefs in favor of the court from the Orange County Bar Association, National Association of National Association of Women Lawyers, Family Violence Appellate Project, Legal Aid Society of Orange County, Public Law Center and the Veterans Legal Institute.

The Reporters Committee for Freedom of the Press and 15 other media organizations filed briefs supporting the news organization.

For the Jones Day attorneys defending Orange County Superior Court executive officer David H. Yamasaki, the partial summary judgment order gutted Courthouse News Services' claims.

But for the Bryan Cave attorneys representing Courthouse News, the order kept in place claims beyond same-day access, which in a separate action against Ventura County Superior Court earned them $2.1 million in attorney fees.

Jones Day partner Robert A. Naeve filed a motion seeking to prohibit Courthouse News from pursuing what he said was a new theory involving multi-day delays, but Guilford agreed with Bryan Cave's Jonathan G. Fetterly and John W. Amberg that the theory isn't new. He issued an order Wednesday that said attorneys "may not attempt to relitigate issues decided as a matter of law" in his May 9 partial summary judgment order. Courthouse News Service v. Yamasaki, 17-CV00126 (C.D. Cal., filed Jan. 24, 2017).

Bryan Cave's $2.1 million fee award by U.S. District Judge S. James Otero in the Ventura County case is pending before the 9th U.S. Circuit Court of Appeals.

The Bryan Cave team requested approximately $4.9 million for nearly 11,500 hours between June 2011 and July 2016, but Otero determined nearly $1.7 million wasn't recoverable.

He decreased the remaining $3.2 million by 40 percent because the attorneys did not succeed in their ultimate goal, which was "a declaration that the First Amendment to the United States Constitution requires same-day access to newly filed civil complaints." Courthouse News Service v. Planet, 11-CV08083, (C.D. Cal., filed Sept. 29, 2011).

Bryan Cave attorneys, including Rachel E. Matteo-Boehm, appealed that decision, while Naeve cross-appealed. Naeve also has appealed Otero's judgment for declaratory relief and permanent injunction against two Ventura County Superior Court intake policies, and Matteo-Boehm and Amberg last September appealed Guilford's denial of a preliminary injunction in the Orange County case.

The three issues are scheduled for oral argument June 28 in Pasadena. Courthouse News Service v. Planet, 16-55977 (9th Cir., filed July 8, 2016).

Otero stayed the enforcement of the fee pending the appeal, in exchange for Ventura County Superior Court obtaining a bond to pay it.

Guilford had issued a 44-page summary judgment order on May 9 similar to Otero's 2016 order in that it rejects Courthouse News Service's argument for same-day access to civil complaints. However, while Otero declared Ventura County's policy of withholding complaints for processing to be unconstitutional, Guilford said the record in the Orange County case prevented him from drawing such a conclusion.

Orange County Superior Court receives an average of 14,098 new civil filings a year. The court argues 95.97 percent of complaints in 2017 were available within eight business hours. Courthouse News argues 56.9 percent were delayed one to 13 days. A four-day bench trial in the Orange County case is to begin May 29.