Courthouse News Service
California Legislature Kills $10 Fee for Search of Public Court Records
By MARIA DINZEO
SAN FRANCISCO (CN) - A trailer bill that would have severely limited press and public access to court documents has died in the California Legislature, after widespread editorial condemnation from the state's newspapers. The defeated proposal was put forward by the Administrative Office of the Courts and would have charged $10 per file to look at court records.
While court administrators pushed the fee as a way to raise revenue, freedom of information advocates said the proposal would in practice wall off the public record. The political and editorial fallout resulted in a self-inflicted wound for court bureaucrats, with legislators blasting the fee and those that proposed it.
"Most agreed that it would be horrible public policy," said Jim Ewert, General Counsel for the California Newspaper Publishers Association, a group that lobbied fiercely against the proposal.
During an early hearing on the trailer bill that included the search fee, Bob Blumenfield, chair of the Assembly Budget Committee, lectured the bureaucrats on their fiscal conduct.
'While the state grappled with the budget crisis, court administrators have sometimes acted fiscally irresponsible even though fiscal responsibility was the mantra of the day," said Blumenfield.
The search fee took a few twists and turns as it was caught up in the deal-making that comes with California's budget.
Neither the Senate nor the Assembly had shown support for the search fee, Ewert pointed out, but very late in the process the Senate inserted a vague "press exemption" into the proposal. But no specific language defined the exemption, how it would be applied nor who was entitled to invoke the exemption.
A Senate's budget subcommittee then approved the fee with a press exemption. While the fee failed in the Assembly's budget committee.
On Monday evening, a joint budget conference committee representing both chambers voted to accept the Assembly version of the bill, which meant the fee proposal, after weeks of wrangling and criticism, was dead.
"That's one of the great mysteries," said Ewert of how the exemption came to be inserted into the trailer bill. "All I can speculate is that the Assembly wanted to protect every person's ability to obtain this information very important information and not just the press," said Ewert.
The defeat of the fee followed a statewide blast from newspaper editorial pages
The Monterey County Herald , among many, pointed out the importance of access to court files in order to report on important public business.
"A $10 fee would be devastating to newspapers and other news operations, especially relatively small ones such as The Herald. Newspapers this size review dozens of new court files each month in search of potential stories - many of them about important public business."
The opposition came not only from newspapers but from groups defending access to government records such as the Sonoma County Historical Society.
"I write to oppose the proposed $10 fee to search California court records," wrote Jeremy Nichols, president of the historical society, in a letter to Senator Noreen Evans. "Our 500+ members cannot afford to pay $10 for every court record they see for their volunteer work or personal research."
Open government advocates such as the Society of Professional Jounalists and Californians Aware also criticized the search fee. Cal Aware's Terry Francke referred to it as "fee-jacking."
In the Legislature, the fee landed in a minefield of criticism.
In his extraordinary lecture to court officials, budget committee chair Blumenfield referred to the court administrative office's history of wasteful spending.
"We've seen a failed computer system with cost overruns of nearly $500 million wasted," Blumenfield told the officials. "In the process, the courts took millions from trial courts which actually sacrificed access to justice to keep the failed computer project running."
He referred to another administrative office financial controversy that is in the making. "This year the court system will likely enter an agreement to spend $100 million more than we should to build a new courthouse in Long Beach."
"For these reasons," he concluded, "the courts have had a bumpy road in the Legislature."
The fee idea also came as one in a series of policies and initiatives by the administrative office that shield the office from transparency.
The administrative office has, for example, proposed rules that would delay access to court records until they have been officially accepted, a process that can take weeks and destroys the news interest in a new court filing.
The office has also denied information requests by an association of judges that says the administrative office is "transparent as the Iron Curtain."
"Over the last year, efforts to obtain public records from the AOC have been routinely ignored, denied, delayed," said the Alliance of California Judges. The administrative office's reaction to requests for information, said the Alliance, "is an assault on the basic notion of open government that as Americans we expect of those who are funded by public dollars."
Judges in the Alliance also criticized the $10 search fee as a "concept apparently created in non-public meetings by unidentified AOC staff and others."
The Legislature seems to be hearing those complaints.
Legislators are attempting to tie the budget to a requirement that the judiciary's rule-making body, the Judicial Council, along with its committees and working groups, conduct their business in open, public meetings. The push to open up those committee meetings applies directly to the way the search fee was generated, through a series of council committees closed to the public.
In a statement currently posted on Assembly Speaker John Perez's website, the Los Angeles Democrat says that a modest increase of funds for the courts in this year's budget will be tied to "accountability measures" that "ensure public access to key judicial branch administrative decisions."
Ewert with the newspaper association said the death of the search fee is a good sign for press access, in a bleak time when the national administration is pursuing the records of journalists.
"I think it bodes well for press access," said Ewert. "Especially in light of recent events with respect to the Associated Press and the federal Department of Justice going after phone records. It's renewed a focus on the trust the public has in the press to provide accurate and truthful information about government activities. Now with this decision the press will be able to do that with respect to the courts."
California judiciary scrambles for dollars
By Alex Matthews | 06/18/13 10:00 AM PST
Last week, the California judiciary went on a rollercoaster ride.
The final budget – it’s been approved by the Legislature and awaits Gov. Brown’s signature -- included some relief for a court system that has taken continuous cuts over the last five years. But there were indications that the money is too little, too late: in Los Angeles, the Superior Court announced it would press forward with the elimination of 511 positions.
“On a bipartisan basis California State Senate and State Assembly fought hard to ensure additional funding for the beleaguered judicial system,” chair of the Public Safety Budget Subcommittee Assemblymember Reginald Jones-Sawyer said. “It is unfortunate that the Los Angeles Superior Court, prematurely plans to eliminate more than 500 jobs by the end of the week before determining how this additional funding will help.”
As the spending plan emerged, the mood of state Supreme Court Chief Justice Tani Cantil-Sakauye was a mixture of gloom and gratitude.
“The proposed budget is an initial step forward in restoring the cuts absorbed by the branch,” she said in a statement. “We hope that as the state’s economy improves the branch’s budget will improve, so we can rebuild the kind of access to justice the public deserves.”
Sacramento County Superior Court Judge Laurie Earl is a bit more blunt.
“It certainly is a start after five successive years of cuts, we’re certainly grateful that we weren’t cut anymore and there’s actually an increase in funding, so we are grateful for that,” she said.
That focus on access to justice is why the restoration is targeted almost exclusively at the trial courts: they will receive $60 million while the state system will get the remaining $3 million for the Supreme Court, the Appellate courts, and the Habeas Corpus resource Center.. This strategy reflects the statewide system’s failed attempts to computerize case management and minimize in the construction of a Long Beach courthouse, among other initiatives.
“The money can only be used for that. It cannot be used for raises, it cannot be used for construction or infrastructure projects,” Jones-Sawyer said. “It can only be used to keep the courts open and provide access to justice.”
Los Angeles’ trial courts have been some of the hardest hit in the $778 million of general fund reductions the justice system has taken over the last five years, but they are not the only ones: Trial courts everywhere have been affected. With their constituents’ access to justice directly affected, legislators were motivated to act.
While Gov. Brown’s May Revise, in its cautious revenue estimates, included no money for the courts, the Legislature proposed $100 million. They eventually resolved to allow $63 million, with accountability language included.
The judicial system has generally embraced the accountability measures, Earl said. “The public has the right to know where and how the money is spent, the judicial branch should not be an exception to that.”
Earl served as co-chair of the Trial Budget Working Group, which developed a new funding methodology for trial courts in the interest of increasing court accountability and equal access to justice across the state.
According to Earl, until the late 90s, the courts received their funding from the counties, meaning their fiscal well-being was deeply entrenched in the economic condition of the county and their relationship with local government. As a result, trial court funding was highly inconsistent across counties.
In 1997, the Lockyer-Isenberg Trial Court Funding Act shifted the source of the funding from the counties to the state, but that inequity among trial courts remained. The state based its distribution of funding on the amounts that the courts received from counties in 1994.
“That [amount] had never been adjusted, ever, over the years, despite increased populations, increased workloads, especially in places we hear about now like the Inland Empires and the Sacramento Valley,” Earl said. “As those populations grew, their workload grew and they never got more money.”
The new system is workload-based, which the Judicial Council and the Trial Court Budget Working Group that developed the methodology hope will make the distribution of funds more fair across counties and maximize access to justice.
According to Earl, some counties, such as San Diego, Santa Clara, Orange County, and San Francisco had received more money than was necessary for their workload in the past and will therefore lose some money under the new allocation methodology. Others that have been particularly affected by budget cuts, such as Los Angeles, San Bernardino, Fresno, Riverside, and San Joaquin, will receive more, she said.
In general, the judiciary has responded positively to efforts to increase accountability, even when it means losing money. For example, the San Francisco Superior Court will lose $7.8 million under the new system, but a statement from presiding Judge Cynthia Ming-mei Lee was accepting of the change:
I appreciate the subcommittee’s work on this complicated issue. While the methodology is complex, the reason for adopting it is not. It’s about fairness,” Lee said. “Accessing justice in San Francisco ought to be the same as accessing justice in any other county in the state.”
But Earl pointed out there is injustice in the impact of state mistakes on local access to justice.
“I appreciate the legislature is upset with things like CCMS [the Court Case Management System] and Long Beach cost of construction, but the trial courts were never involved in any of those things,” Earl said. Legislators seem responsive to that perspective:
“That’s why that most of the money is not going to our statewide court system,” Assemblymember Nancy Skinner, who sits on the Budget Subcommittee for Public Safety, said. “It’s going to trial courts because what we want the money to be used for is to expand the services, open the doors, and give the courts more hours of operation, and that’s really our intention.”
Yet the accountability measures may still affect the trial courts’ ability to fulfill those functions, Earl said.
For example, Earl said her court in particular will be devastated by the 1 percent reserve cap that will go into effect with the 2014-2015 budget. Though the Legislature pushed to raise that cap in subcommittees, as a part of the compromise to give the courts the restoration, the administration’s proposal remained, along with trailer bill language to ease the courts’ management of the reserves. The Legislative Analyst’s Office argued that the trailer bill language still failed to address how the cap will affect projects traditionally funded by reserves, such as technology.
Earl anticipates that the courts will fall behind technologically over the next few years. Though courts are allowed to maintain the parts of the CCMS that had already been installed, they cannot use the new money for infrastructure or construction.
“In terms of technology I’d say we’re in a Catch-22 because while the state was headed down to the streamlined solution to technology, whether everybody thinks it’s good or bad, we no longer have that option, so now each court is responsible for coming up with its own solutions,” Earl said. “You’ll see greater collaboration among the courts to find solutions that benefit more than one court at a time, but we all have to find the money to be able to support these things, and whether or not the 60 million is enough for the courts to be able to do that, I don’t know.”
It’s already been indicated by the layoffs in Los Angeles that for some courts, the money will certainly not be enough to counter the effects five years of continuous cuts have had.
“For some courts, the amount they get from that 60 million will not be enough to significantly change the plans that they have,” Earl said. “For some courts I think it will provide some measure of relief and for some courts I think it will allow them to not go any further in their reductions, it will give them a little bit of boost to help them for at least another year.”