In Separate Moves, State and Federal Courts in California OK Policy Changes Allowing Greater Public Access

BY PETER SCHEER — The courts in California are often criticized for being out of step with the rest of the country. A willingness among judges to deviate from national orthodoxy is not necessarily a bad thing, however.

Just this week the administrative arm of the California Supreme Court adopted a rule providing public access to administrative records of all state courts, making California the first state to adopt  a legally enforceable “freedom of information” mandate for its judiciary.

Although records filed in adjudicated legal proceedings (civil suits and criminal prosecutions) have long been open to the public, the public has had no comparable right of access to the judiciary’s administrative records–that is, the types of records that courts, in their administrative capacity, possess in common with, say, the Department of Motor Vehicles, the Franchise Tax Board, or any other government agency. Until now.

Under the new access rule, which takes effect January 1, you will be able to request records showing the exact compensation of court employees or reimbursements for judges’ professional expenses. You will be able to obtain a copy of vendor agreements entered into by the courts, or examine detailed financial statements and budget information. Still off limits, of course, are records of the courts’ internal deliberations in adjudicated cases.

The access rule borrows heavily from the California Public Records Act (CPRA), and, to a lesser degree, from the federal FOIA and the access law for the California legislature. Although the rule won’t please everyone–and despite ambiguities in a few provisions that could have been avoided by importing more of the CPRA’s language—the final version is a marked improvement over earlier iterations, having benefited from a drafting process which was itself commendably transparent. And, of course, any right of access is better than none.

Prodded by the state Legislature, the judiciary has, in effect, surrendered its exempt status under the CPRA.  While other state courts and all federal courts remain hidden behind a legal screen of FOI immunity, California’s courts are wagering that greater transparency will result in more public confidence in their work and enhanced support for the principle of judicial independence.

It’s a good bet.

Also this week the US Ninth Circuit Court of Appeals, the federal appellate court that covers California, broke ranks with other federal circuits in announcing that it would allow cameras in selected federal trial court proceedings. The new policy will apply to civil cases only (camera coverage of criminal trials is barred by a federal rule applicable to all US district courts) on an experimental, case-by-case basis.

Timid though it is, the Ninth Circuit’s cameras initiative is audacious by judicial standards. It  will be seen as an injudicious middle finger salute of the Judicial Conference, the federal courts’ rulemaking arm, which (with the Supreme Court’s presumed blessing) has vigorously enforced the no-cameras policy. Just this year,  district court judges in Massachusetts (the federal First Circuit) and Illinois (Seventh Circuit) had their hands slapped for opening courtroom doors to cameras.

The new Ninth Circuit policy is timely: Among the first California cases to which it is likely to apply is the civil rights lawsuit challenging Prop 8, which is before Judge Vaughn Walker, Chief Judge of the San Francisco district court. One can hardly imagine a better test case for demonstrating the benefits of camera access: A smart, no-nonsense judge (a Republican appointee, but with distinctly libertarian leanings);  first class lawyers, both experts in constitutional litigation, who know how not to play to a television audience; and a hugely important legal dispute of interest to viewers of both Fox News and the Colbert Report.

Federal judges’ aversion to televised trial court proceedings is directly traceable to the all-too-public travesty of the OJ Simpson trial. Many judges who had been open to allowing cameras in the courtroom developed a severe and enduring camera-phobia after the Simpson trial. The Prop 8 civil suit may be the perfect antidote.
Peter Scheer, a lawyer and journalist, is executive director or the First Amendment Coalition.