Battle Over Orange County’s Public Disclosure Delays Lands in Federal Court

For folks who appreciate real-life legal dramas, an underrated theater sits, fittingly, on Orange County’s highest manmade perch: the Ronald Reagan Federal Courthouse. The edifice cost more than $123 million to build 18 years ago in Santa Ana, but it’s free to enter for weekday events after passing security scrutiny. It offers sweeping Pacific Ocean views, wood fixtures that will remain elegant for the next century, and—at the insistence of political conservatives, who launched the congressionally backed project—marble imported at taxpayer expense from Tivoli, Italy, quarries prized by Roman emperors.

And in 10D—the building’s top, eastern-corner courtroom—U.S. District Court Judge Andrew J. Guilford presides over an assortment of civil and criminal cases ranging from explosive to amusing to insane or mundane. More than his four, presidentially appointed colleagues in this courthouse, Guilford relishes probing the legal acumen of those who appear before him with a bar card. Feel free to call him the Questioner.

When lawyers engage Guilford in legal minutia by pondering a case from all angles, he doesn’t hide his delight. When he hears ineffective arguments, he’ll play judicial chess master by suggesting fresh alternatives. In short, he loves the mental back-and-forth that’s present when the legal system functions properly.

What Guilford doesn’t appreciate is disrespect. I’ve observed his displeasure in past years after lawyers challenged his impartiality. He’s a UCLA sports enthusiast, and fans aren’t typically meek. Just ask Rachel E. Matteo-Boehm, a San Francisco-based attorney. At a March 20 hearing, Matteo-Boehm grew visibly tired of fielding a steady stream of the judge’s probing questions about her client’s activities and made a quip that he’d already taken sides.

“No, no, no,” a thundering Guilford interrupted. “I resent that. I’m coming to this with an open mind.”

Though she quickly apologized and knows she’s perhaps in the underdog role, Matteo-Boehm wants the judge to grant her client, Courthouse News Service (CNS), a temporary injunction against David Yamasaki, executive officer/clerk of the Orange County Superior Court. The dispute, festering for years, centers on court bureaucrats routinely blocking the news outlet’s inspection of newly filed major litigation briefs for as long as weeks. CNS contends the delays are not only administratively unnecessary, but they also violate the First Amendment right to timely access to legal complaints. Its January lawsuit reported that during the last three months of 2016, for example, nearly half of 3,225 civil unlimited filings were “withheld from the press and public for at least one and up to nine days after the court received them.”

Matteo-Boehm cited three examples of how the public is needlessly left temporarily in dark about important allegations contained in lawsuits:

• A former NFL player complained about vulnerabilities in a mental-health clinic’s online computer files on patients; one-week delay.

• Consumers confronted a national manufacturer of wet wipes for using ingredients potentially harmful to infants; four-day delay.

• San Juan Capistrano residents alleged that city officials ran a crooked water billing operation; three-day delay.

While other jurisdictions—including ones in California, New York and Texas—reformed practices to end the delays, OC officials strenuously resist. They don’t believe First Amendment law requires any policy change. In fact, Yamasaki and Deborah T. Kruse, deputy court operations manager, deny the premise of CNS’s lawsuit. Kruse informed Guilford under penalty of perjury that her records show that on March 1 and 2—a month and a half into the lawsuit—the office “received, reviewed and made available to the public” 98.2 of all electronically filed civil unlimited complaints within eight business hours.

“CNS once again attempts to manipulate these statistics in order to make delays seem worse than they are,” Kruse wrote.

From her side, Matteo-Boehm insists her investigation of Kruse’s numbers proves they were doctored and, left unchallenged, “may leave [Guilford] with the wrong impression.”

Whatever the truth, court officials aren’t taking any chances, especially given CNS’s three victories in similar cases elsewhere. They hired Robert A. Naeve at the expensive Jones Day law firm that unsuccessfully represented sheriff-turned-convicted-felon Mike Carona, a lawman Guilford sent to prison for 66 months. Naeve told the judge that records-room employees shouldn’t have “to drop everything to handle an access request,” are doing a “more than adequate” disclosure job and that CNS has “fundamentally misunderstood” the government’s right to keep records temporarily sealed.

According to him, the constitutionally protected imperative for journalists is “to monitor what a court does” administratively rather than inform the public about the launch of “newsworthy” legal complaints. “It’s a critical point,” Naeve said about a notion that’s news to me—and I’ve covered courthouses in multiple jurisdictions for a quarter of a century.

If Yamasaki is right, the delays in disclosure aren’t due to bureaucratic whim, but rather the need for his staff to redact confidential information—the names of children and the identities of sex-crimes victims, for example—from filings. On behalf of the Orange County Bar Association, Family Violence Appellate Project, Legal Aid Society of Orange County and Veterans Legal Institute, Haynes and Boone attorney Mary-Christine Sungaila this month filed a supportive amicus curiae brief. “If [court clerks are] not allowed to ensure compliance with confidentiality statutes and rules of court before releasing complaints to the public, then legally protected private information might be released to the public,” Sungaila opined. “Such revelations would be particularly serious if the private information is then electronically published by the media to a large audience.”

Guilford acknowledged his appreciation for the input, announced his obligation to apply appropriate “balancing tests” of competing interests and suggested his preferred method of ultimately resolving the dispute.

“Why not quickly get to a trial?” he asked. “The Fourth Estate is extremely important to the country, and newspapers are under attack.”

Given that neither attorney appeared anxious for a speedy trial, we’ll wait for developments as the judge contemplates an injunction.

R. Scott Moxley’s award-winning investigative journalism has touched nerves for two decades. An angry congressman threatened to break Moxley’s knee caps. A dirty sheriff promised his critical reporting was irrelevant and then landed in prison. The U.S. House of Representatives debated his work. Federal prosecutors credited his stories for the arrest of a doctor who sold fake medicine to dying patients. Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; and hailed by two New York Times Magazine writers for his “herculean job” exposing Southern California law enforcement corruption.

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