Courthouse News Service v. Michael Planet

Filing 21

Submitted (ECF) Answering brief for review. Submitted by Appellee Michael D. Planet. Date of service: 07/30/2012. [8267820] (NG)

Appeal No. 11-57187
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COURTHOUSE NEWS SERVICE,
Plaintiff-Appellant,
v.

MICHAEL PLANET, in his official capacity as Court Executive Officer/Clerk
of the Ventura County Superior Court,
Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
HONORABLE MANUEL L. REAL
CASE NO. CV11-08083
APPELLEE’S ANSWERING BRIEF
Robert A. Naeve
Erica L. Reilley
Nathaniel P. Garrett
JONES DAY
3161 Michelson Drive
Suite 800
Irvine, CA 92612.4408
Telephone: [phone]
Facsimile: +1.949.553.7539
E-mail:
[e-mail]
Attorneys for Defendant-Appellee
MICHAEL PLANET

TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
STATEMENT OF FACTS ........................................................................................2
A.

VSC’s Clerks Process By Hand More Than 150,000 New
Filings Per Year. ....................................................................................2

B.

The State’s Budget Crisis Affects VSC’s Ability To Process
Newly-Filed Unlimited Civil Complaints. ............................................3
1.

VSC Cannot Hire New Court Processing Assistants..................3

2.

VSC Has Assumed Responsibility For Simi Valley Court
Filings..........................................................................................4

3.

VSC Reduced Its Public Hours. ..................................................4

4.

VSC Can No Longer Process Documents Immediately
When Received. ..........................................................................4

C.

Despite These Constraints, VSC Strives To Provide Access To
Newly-Filed Unlimited Civil Complaints The Day After
Receipt. ..................................................................................................5

D.

Starting In November 2010, CNS Demanded “Same-Day
Access” To Newly-Filed Unlimited Civil Complaints. ........................7

STATEMENT OF THE CASE ..................................................................................9
STANDARD OF REVIEW .....................................................................................12
SUMMARY OF ARGUMENT ...............................................................................13

i

TABLE OF CONTENTS
(continued)
Page
ARGUMENT ...........................................................................................................17
I.

CALIFORNIA LAW RECOGNIZES A UNIQUE RIGHT OF
“REASONABLE ACCESS” TO DOCUMENTS FILED WITH A
SUPERIOR COURT, INDEPENDENT OF THE FIRST
AMENDMENT. ............................................................................................17
A.

No Court Has Held That The First Amendment Guarantees A
Right Of “Same-Day” Access To Newly-Filed Civil
Complaints...........................................................................................18

B.

California Law Recognizes A Right Of “Reasonable Access”
To Court Documents Independent Of The First Amendment. ...........21
1.
2.

CNS Unsuccessfully Sponsored SB 326, A Bill To
Amend The California Government Code To Require
“Same-Day Access” To Newly-Filed Civil Complaints. .........22

3.

California Rules Of Court 2.500(A) And 2.503(A). .................23

4.
II.

California Government Code § 68150. .....................................21

Article I § 3(b) Of The California Constitution. .......................24

THE DISTRICT COURT PROPERLY ABSTAINED UNDER
PULLMAN. ....................................................................................................25
A.

The Pullman Doctrine Promotes Comity And Avoids
Unnecessary Constitutional Decision-Making....................................25

B.

CNS’s Lawsuit Touches Upon Sensitive Areas Of State
Sovereignty. .........................................................................................27
1.

Lawsuits Challenging The Administrative Operations Of
State Courts Implicate Important Social Policies Of State
Concern. ....................................................................................27

2.

Cases Excusing Abstention In Freedom Of Expression
Lawsuits Are Inapposite. ..........................................................30

ii

TABLE OF CONTENTS
(continued)
Page
C.

CNS’s Claim Could Be Narrowed Or Mooted By An
Interpretation Of California’s “Reasonable Access” Laws.................37
1.

2.

D.
III.

Interpretation Of California’s Right Of “Reasonable
Access” Could Obviate Or Narrow CNS’s First
Amendment Access Claim... .....................................................37
CNS’s “Mirror Image” Argument Fails Because There
Are No Federal Constitutional Counterparts To
California’s Specialized Access Provisions..............................38

The Proper Interpretation Of State Law Is In Doubt. .........................43

THE DISTRICT COURT PROPERLY INVOKED THE DOCTRINE
OF EQUITABLE ABSTENTION. ...............................................................44
A.

Federal Courts Have The Right And Obligation To Refrain
From Exercising Equity Jurisdiction In Cases That Seek to
Impose Ongoing Audits of State Courts. ............................................44

B.

CNS’s Complaint Is Barred By The Doctrine Of Equitable
Abstention. ..........................................................................................49

C.

CNS Has Not Demonstrated That The District Court Abused Its
Discretion In Invoking Equitable Abstention. ....................................53
1.

Equitable Abstention Is Not Limited To Cases In Which
The Federal Plaintiff Challenges The Merits Of State
Court Proceedings. ....................................................................53

2.

Gerstein v. Pugh Does Not Apply To This Case. .....................55

3.

Equitable Abstention Has Been Invoked In First
Amendment Cases… ................................................................57

CONCLUSION ........................................................................................................59
ADDENDUM ..........................................................................................................62

iii

TABLE OF AUTHORITIES
Page
Cases 
31 Foster Children v. Bush,
329 F.3d 1255 (11th Cir. 2003) ..................................................................... 25, 52
Ad Hoc Comm. on Jud. Admin. v. Mass.,
488 F.2d 1241 (1st Cir. 1973) ....................................................................... 28, 50
Allegheny Airlines, Inc. v. Pa. Pub. Util. Comm’n,
465 F.2d 237 (3d Cir. 1972) .................................................................................46
Almodovar v. Reiner,
832 F.2d 1138 (9th Cir. 1987) ................................................................. 12, 27, 33
Alvarez v. Superior Court,
154 Cal.App.4th 642 (2007) .......................................................................... 20, 40
Am. Family Ass’n Inc. v. City & Cnty. of S.F.,
277 F.3d 1114 (9th Cir. 2002) ..............................................................................34
AmerisourceBergen Corp. v. Roden,
495 F.3d 1143 (9th Cir. 2007) ..............................................................................54
Anderson v. Cryovac, Inc.,
805 F.2d 1 (1st Cir. 1986) ....................................................................................18
Babbitt v. United Farm Workers Nat’l Union,
442 U. S. 289 (1979) ..................................................................................... 35, 36
Badham v. U.S. Dist. Court,
721 F.2d 1170 (9th Cir 1983) ...............................................................................43
Baffert v. Cal. Horse Racing Bd.,
332 F.3d 613 (9th Cir. 2003) ................................................................................58
Ballard v. Wilson,
856 F.2d 1568 (5th Cir. 1988) ....................................................................... 28, 52
Bice v. La. Pub. Defender Bd.,
677 F.3d 712 (5th Cir. 2012) ................................................................................46

iv

TABLE OF AUTHORITIES
(continued)
Page
Burford v. Sun Oil Co.,
319 U.S. 315 (1943) .............................................................................................45
Canton v. Spokane Sch. Dist. No. 81,
498 F.2d 840 (9th Cir. 1974) ................................................................................26
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) ........................................................................................ 45, 54
City of Meridian v. S. Bell Tel. & Tel. Co.,
358 U.S. 639 (1959) ...................................................................................... 26, 37
Cnty. of Allegheny v. Frank Mashuda Co.,
360 U.S. 185 (1959) .............................................................................................26
Colo. River Conservation Dist. v. United States,
424 U.S. 800 (1976) .............................................................................................25
Columbia Basin Apartment Ass’n v. City of Pasco,
268 F.3d 791 (9th Cir. 2001) ......................................................................... 38, 39
Comm’n on Peace Officer Standards & Training v. Superior Court,
42 Cal.4th 278 (2007) ...........................................................................................24
Conn. Magazine v. Moraghan,
676 F. Supp. 38 (D. Conn. 1987) .........................................................................56
Courthouse News Serv. v. Jackson,
No. 09-1844, 2009 WL 2163609 (S.D. Tex. July 20, 2009) ......................... 20, 30
C-Y Dev. Co. v. City of Redlands,
703 F.2d 375 (9th Cir. 1983) ................................................................................37
De Garmo v. Superior Court,
1 Cal.2d 83 (1934) ................................................................................................57
E.T. v. Cantil-Sakauye,
682 F.3d 1121 (9th Cir. 2012) ...................................................................... passim
Examining Bd. v. Flores de Otero,
426 U.S. 572 (1976) .............................................................................................38

v

TABLE OF AUTHORITIES
(continued)
Page
Fields v. Rockdale Cnty. Ga.,
785 F.2d 1558 (11th Cir. 1986) ............................................................................40
FOCUS v. Allegheny Cnty. Court of Common Pleas,
75 F.3d 834 (3d Cir. 1996) ...................................................................................56
Fort Wayne Journal-Gazette v. Baker,
788 F. Supp. 379 (N.D. Ind. 1992) .......................................................................56
Fresh Int’l Corp. v. Agric. Labor Relations Bd.,
805 F.2d 1353 (9th Cir. 1986) ..............................................................................12
Gerstein v. Pugh,
420 U.S. 103 (1975) .............................................................................................55
Globe Newspaper Co. v. Pokaski,
868 F.2d 497 (1st Cir. 1989) ................................................................................58
Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982) .............................................................................................50
Gottfried v. Med. Planning Servs., Inc.,
142 F.3d 326 (6th Cir. 1998) ................................................................................36
Habich v. City of Dearborn,
331 F.3d 524 (6th Cir. 2003) ................................................................................56
Harris Cnty. Comm’rs Court v. Moore,
420 U.S. 77 (1975) ........................................................................................ 38, 39
Harrison v. NAACP,
360 U.S. 167 (1959) .............................................................................................36
Hartford Courant Co. v. Pellegrino,
380 F.3d 83 (2d Cir. 2004) ............................................................................ 34, 56
Hawaii Housing Auth. v. Midkiff,
467 U.S. 229 (1984) .............................................................................................38
Henkel v. Bradshaw,
483 F.2d 1386 (9th Cir. 1973) ..............................................................................57

vi

TABLE OF AUTHORITIES
(continued)
Page
Hirsch v. Justices of Supreme Court of Cal.,
67 F.3d 708 (9th Cir. 1995) ..................................................................................58
Hoopa Valley Tribe v. Nevins,
881 F.2d 657 (9th Cir. 1989) ................................................................................18
Hoover v. Wagner,
47 F.3d 845 (7th Cir. 1995) ........................................................................... 52, 57
Horne v. Flores,
557 U.S. 433 (2009) .............................................................................................29
Houchins v. KQED, Inc.,
438 U.S. 1 (1978) .................................................................................................18
Huffman v. Pursue, Ltd.,
420 U.S. 592 (1975) .............................................................................................57
Hughes v. Lipscher,
906 F.2d 961 (3d Cir. 1990) .................................................................................30
In re Application & Affidavit for a Search Warrant,
923 F.2d 324 (4th Cir. 1991) ................................................................................56
In re Midland Nat’l Life Ins. Co.,
--- F.3d ----, 2012 WL 3024192 (9th Cir. July 25, 2012) ....................................18
In re Reporters Comm. for Freedom of the Press,
773 F.2d 1325 (D.C. Cir. 1985) ...........................................................................20
Joseph A. ex rel. Wolfe v. Ingram,
275 F.3d 1253 (10th Cir. 2002) ..................................................................... 46, 52
Juidice v. Vail,
430 U.S. 327 (1977) .............................................................................................56
Kaufman v. Kaye,
466 F.3d 83 (2d Cir. 2006) ............................................................................ 27, 54
Kelley v. Johnson,
425 U.S. 238 (1976) ...................................................................................... 48, 53

vii

TABLE OF AUTHORITIES
(continued)
Page
Ky. Press Ass’n, Inc. v. Kentucky,
454 F.3d 505 (6th Cir. 2006) ................................................................................44
L.A. Alliance for Survival v. City of L.A.,
22 Cal.4th 352 (2000) ...........................................................................................40
L.A. Cnty. Bar Ass’n v. Eu,
979 F.2d 697 (9th Cir. 1992) ............................................................. 27, 29, 48, 51
L.A. Police Dep’t v. United Reporting Publishing Corp.,
528 U.S. 32 (1999) .................................................................................. 31, 32, 33
Laird v. Tatum,
408 U.S. 1 (1972) .................................................................................................33
Lake Carriers’ Ass’n v. MacMullan,
406 U.S. 498 (1972) .............................................................................................41
Lawson v. Hill,
368 F.3d 955 (7th Cir. 2004) ................................................................................51
Leigh v. Salazar,
677 F.3d 892 (9th Cir. 2012) ................................................................................19
Levine v. U.S. Dist. Court,
764 F.2d 590 (9th Cir. 1985) ................................................................................31
Lewis v. Casey,
518 U.S. 343 (1996) .............................................................................................45
Manney v. Cabell,
654 F.2d 1280 (9th Cir. 1980) ..............................................................................42
Martin v. Creasy,
360 U.S. 219 (1959) .............................................................................................26
Martinez v. Newport Beach City,
125 F.3d 777 (9th Cir. 1997) ................................................................................12
McKusick v. City of Melbourne, Fla.,
96 F.3d 478 (11th Cir. 1996) ......................................................................... 52, 57

viii

TABLE OF AUTHORITIES
(continued)
Page
Mercury Interactive Corp. v. Klein,
158 Cal.App.4th 60 103 (2007) ............................................................................21
Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423 (1982) ................................................................................ 54, 56, 57
Missouri v. Jenkins,
515 U.S. 70 (1995) ...............................................................................................45
Moore v. Sims,
442 U.S. 415 (1979) .............................................................................................56
Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm.,
283 F.3d 650 (5th Cir. 2002) ................................................................................36
NBC Subsidiary (KNBC-TV) v. Superior Court,
20 Cal.4th 1178 (1999) ................................................................................. passim
New Orleans Pub. Serv., Inc. v. Council of New Orleans,
491 U.S. 350 (1989) .............................................................................................45
News-Journal Corp. v. Foxman,
939 F.2d 1499 (11th Cir. 1991) ............................................................................57
Nixon v. Warner Commc'ns, Inc.,
435 U.S. 589 (1978) ...................................................................................... 18, 31
O’Shea v. Littleton,
414 U.S. 488 (1974) ..................................................................................... passim
Parker v. Turner,
626 F.2d 1 (6th Cir. 1980) ....................................................................................48
Pennzoil Co. v. Texaco Inc.,
481 U.S. 1 (1987) .................................................................................................58
Perry v. Brown,
667 F.3d 1078 (9th Cir. 2012) ..............................................................................18
Pompey v. Broward Cnty.,
95 F.3d 1543 (11th Cir. 1996) ................................................................. 27, 52, 56

ix

TABLE OF AUTHORITIES
(continued)
Page
Porter v. Jones,
319 F.3d 483 (9th Cir. 2003) ................................................................................30
Press-Enterprise Co. v. Superior Court,
478 U.S. 1 (1986) .................................................................................................19
Pue v. Sillas,
632 F.2d 74 (9th Cir. 1980) ........................................................................... 13, 38
Pustell v. Lynn Pub. Schs.,
18 F.3d 50 (1st Cir. 1994) ....................................................................................40
Quackenbush v. Allstate Ins. Co.,
517 U.S. 706 (1996) .............................................................................................25
Railroad Comm'n of Texas v. Pullman Co.,
312 U.S. 496 (1941) ..................................................................................... passim
Reetz v. Bozanich,
397 U. S. 82 (1970) ..............................................................................................38
Reporters Comm. for Freedom of the Press v. AT&T,
593 F.2d 1030 (D.C. Cir. 1978) ...........................................................................33
Richardson v. Koshiba,
693 F.2d 911 (9th Cir. 1982) ................................................................................28
Rivera-Puig v. Garcia-Rosario,
983 F.2d 311 (1st Cir. 1992) ......................................................................... 34, 54
Rizzo v. Goode,
423 U.S. 362 (1976) .......................................................................... 46, 48, 49, 53
Sable Commcn's of Cal., Inc. v. Pacific Tel. & Tel. Co.,
890 F.2d 184 (9th Cir. 1989) ......................................................................... 31, 54
Safe Air for Everyone v. Meyer,
373 F.3d 1035 (9th Cir. 2004) ..............................................................................12
Samuels v. Mackell,
401 U.S. 66 (1971) ...............................................................................................57

x

TABLE OF AUTHORITIES
(continued)
Page
Savaglio v. Wal-Mart Stores, Inc.,
149 Cal.App.4th 588 (2007) .................................................................................20
Seattle Times Co. v. Rhinehart,
467 U.S. 20 (1984) ...............................................................................................19
Sederquist v. City of Tiburon,
590 F.2d 278 (9th Cir. 1978) ................................................................................28
Smelt v. Cnty. of Orange,
374 F. Supp. 2d 861 (C.D. Cal. 2005), .......................................................... 34, 35
Smelt v. County of Orange,
447 F.3d 673 (9th Cir. 2006) ......................................................................... 12, 35
Spoklie v. Mont.,
411 F.3d 1051 (9th Cir. 2005) ..............................................................................37
Stefanelli v. Minard,
342 U.S. 117 (1951) .............................................................................................46
Stephens v. Tielsch,
502 F.2d 1360 (9th Cir. 1974) ..............................................................................39
Tarter v. Hury,
646 F.2d 1010 (5th Cir. 1981) ....................................................................... 50, 51
TrafficSchoolOnline, Inc. v. Superior Court,
89 Cal.App.4th 222 (2001) ...................................................................................57
United States v. Amodeo,
44 F.3d 141 (2d Cir. 1995) ...................................................................................18
United States v. Bus. of the Custer Battlefield Museum & Store,
658 F.3d 1188 (9th Cir. 2011) ..............................................................................19
United States v. Hinkson,
585 F.3d 1247 (9th Cir. 2009) ..............................................................................12
Va. Dep’t of State Police v. Wash. Post,
386 F.3d 567 (4th Cir. 2004) ................................................................................19

xi

TABLE OF AUTHORITIES
(continued)
Page
Wallace v. Kern,
520 F.2d 400 (2d Cir. 1975) .................................................................................56
White v. Lee,
227 F.3d 1214 (9th Cir. 2000) ..............................................................................12
Wolfson v. Brammer,
616 F.3d 1045 (9th Cir. 2010) ..............................................................................26
Word of Faith World Outreach Ctr. Church, Inc. v. Morales,
986 F.2d 962 (5th Cir. 1993) ................................................................................36
World Famous Drinking Emporium, Inc. v. City of Tempe,
820 F.2d 1079 (9th Cir. 1987) ..............................................................................13
Younger v. Harris,
401 U.S. 37 (1971) ....................................................................................... passim
Zemel v. Rusk,
381 U.S. 1 (1965) .................................................................................................32
Constitutional Provisions 
Cal. Const. art. I, § 2(a) ............................................................................................40
Cal. Const. art. I, § 3(b).................................................................................... passim
U.S. Const. art. VI, cl. 2 ...........................................................................................41
Statutes 
28 U.S.C. § 1291 ......................................................................................................11
42 U.S.C. § 1983 ............................................................................................... 18, 42
1994 Cal. Legis. Serv. Ch. 1030, § 1 .......................................................................21
Cal. Civ. Proc. Code § 124 ......................................................................................40
Cal. Civ. Proc. Code § 1085 ............................................................................. 37, 56
Cal. Civ. Proc. Code § 1904 ....................................................................................22

xii

TABLE OF AUTHORITIES
(continued)
Page
Cal. Gov’t Code § 68150(c) .....................................................................................23
Cal. Gov’t Code § 68150(l) ............................................................................. passim
Cal. Gov't Code § 68151(a)(1) .................................................................................22
Cal. Welf. & Inst. Code § 202 .................................................................................42
Cal. Welf. & Inst. Code § 851 .................................................................................42
Rules 
Cal. R. Ct. 2.400(a) ..................................................................................................23
Cal. R. Ct. 2.500 ............................................................................................... passim
Cal. R. Ct. 2.503 ............................................................................................... passim
Cal. R. Ct. 2.550(a)(1)....................................................................................... 24, 39
Cal. R. Ct. 2.550(c) ..................................................................................................23
Fed. R. Civ. P. 12(b)(1)............................................................................................12
Fed. R. Civ. P. 12(b)(6)............................................................................................12
Other Authorities 
Assembly Comm. On Appropriations, Comm. Report For 2011 California
Senate Bill No. 326 (August 25, 2011), http://www.leginfo.ca.gov/pub/1112/bill/sen/sb_03010350/sb_326_cfa_20110824_162046_asm_comm.html .....................................29
Charles Alan Wright et al., 5B Federal Practice & Procedure § 1350 (3d ed.
2012) .....................................................................................................................12

xiii

INTRODUCTION
California law gives the public a right of “reasonable access” to court
records. Cal. Const. art. I, § 3(b); Cal. Gov’t Code § 68150(l); Cal. Rs. Ct. 2.500
& 2.503. However, California’s courts have not yet determined the nature or scope
of this right.
Plaintiff Courthouse News Service (“CNS”) sued defendant Michael Planet,
the Executive Officer of the Superior Court of California, County of Ventura
(“VSC”), claiming that VSC’s clerks failed consistently to provide access to all
unlimited civil complaints on the same day VSC receives them—that is, for failure
to guarantee “same-day access.” However, CNS did not sue in state court to
determine whether the right to “reasonable access” requires VSC to guarantee
“same-day access.” Instead, CNS jumped the gun by filing this lawsuit in federal
court; failing to refer to apposite California precedent; and then asking the district
court to conclude that the First Amendment somehow creates a federal
constitutional guarantee of “same-day access” to newly-filed civil complaints, even
before a judge has reviewed, adjudicated or acted on them in any way—a right that
has not been recognized by this Court or any other federal appellate court.
The district court recognized that a decision on this novel question of federal
constitutional law could be avoided or narrowed if California’s courts were first
asked to decide whether the right of “reasonable access” creates a guarantee of

1

“same-day access” to newly-filed complaints. The district court further recognized
that requiring state courts to guarantee “same-day access” would impermissibly
entangle federal courts in the administration of the California judicial system. For
these reasons, the district court abstained from deciding CNS’s lawsuit pursuant to
the established abstention doctrines developed in Railroad Commission of Texas v.
Pullman Co., 312 U.S. 496 (1941), and O’Shea v. Littleton, 414 U.S. 488 (1974).
The district court’s decision should be affirmed.
STATEMENT OF FACTS
A.

VSC’s Clerks Process By Hand More Than 150,000 New Filings
Per Year.

The Ventura County Superior Court (“VSC”) receives and processes more
than 150,000 separate filings every year. SER 47. Its Civil Department employs
fourteen Court Processing Assistants (“CPAs”) and one supervisor to process these
filings. Id. Assuming there are 260 court days in a year—an overestimation that
does not account for court holidays, mandatory closure days, and staff vacation
days—VSC processes more than 575 filings every day.
None of these 150,000-plus documents can be filed electronically. Unlike
federal courts, which have long since adopted PACER, or some of the larger state
courts that have electronic filing capabilities, all filings in Ventura County must be
processed by hand. SER 46-47. “[U]nlike the clerk’s office in federal and other
electronic filing courts, the clerk’s office in the Ventura Superior Court is burdened

2

by the substantial additional administrative task imposed by the need to process by
hand every document filed with the court.” Id.
Many of the hundreds of filings processed every day, such as ex parte
applications or motions of various types, demand more immediate attention than
newly-filed complaints. Indeed, the litigation process typically requires little
judicial action for some time after filing: “[M]ost new complaint files remain
essentially inactive for approximately 65 days, until the summons and complaint
are served, and the defendant(s) answers or take some other action.” SER 53-54.
B.

The State’s Budget Crisis Affects VSC’s Ability To Process
Newly-Filed Unlimited Civil Complaints.

The shadow of California’s well-publicized budget crisis looms large over
VSC’s operations. Between 2008 and 2011, VSC’s budget shrunk by more than
$13 million. SER 110. As a result, VSC’s deficit is expected to exceed $12
million in 2012. SER 113. This budget shortfall affects VSC’s operations in a
substantial number of ways.
1.

VSC Cannot Hire New Court Processing Assistants.

California’s budget shortfalls have resulted in a four-year hiring freeze at the
VSC and increased mandatory furlough days. As a result, VSC’s administrative
vacancy rate more than doubled between 2008 (22 vacancies) and 2011 (48
vacancies). SER 110-111. At least eight of the court’s administrative vacancies
are for positions in the civil processing unit and records departments, which impair

3

the court’s ability to process all civil filings, including unlimited civil complaints.
SER 50.
2.

VSC Has Assumed Responsibility For Simi Valley Court
Filings.

The burden on the court’s CPAs has increased and will further increase, now
that responsibilities for new case filings have been transferred from the Simi
Valley Courthouse to the court’s central Hall of Justice facility as a result of
reduced staffing. SER 48-49. The CPAs at the Hall of Justice facility now are
responsible for processing complaints filed in two different courthouses.
3.

VSC Reduced Its Public Hours.

VSC also was required to reduce its public business hours from a closing
time of 5:00 p.m. to 3:00 p.m. SER 111. Documents submitted for filing after
3:00 p.m. are deposited in a secure “drop box” and are retrieved for processing at
5:00 p.m. SER 51-52.
4.

VSC Can No Longer Process Documents Immediately
When Received.

Before June 2010, most new complaints were received by CPAs at public
filing windows, where CPAs immediately processed and placed them in case files.
SER 52. Due to the small number of open clerk windows, and the reduced
numbers of CPAs available to staff them, VSC now requires most new complaints
to be “dropped off” at the filing windows to be processed by a back-counter CPA.
SER 52-53. This change has allowed the Civil Department’s limited staff to deal
4

with other customers waiting in line at the civil filing windows and to prioritize ex
parte applications and other time-sensitive matters. SER 53-54.
C.

Despite These Constraints, VSC Strives To Provide Access To
Newly-Filed Unlimited Civil Complaints The Day After Receipt.

VSC’s established practice is to process newly-filed unlimited civil
complaints; place them in official court files; and deposit these files in the Records
Department Media Bin for public review for several days before the file is shelved.
SER 33. In response to prior complaints from CNS (and only CNS), VSC now
prioritizes the processing of newly-filed unlimited civil complaints over newlyfiled complaints in other matters, such as limited civil and family matters. SER 58.
VSC aims for a two-day turnaround so that most new complaints are filed and
deposited in the Media Bin the day after they are received. SER 58. VSC does not
and will not deny access to any document maintained in its public files—other than
sealed or confidential files—and has not enacted a blanket policy against granting
“same-day access” to newly-filed unlimited civil complaints. SER 64. It simply
cannot guarantee same-day access. Id.
Based on an informal survey conducted by one of its reporters, CNS
contends that of 152 complaints filed between August 8 and September 2, 2011,
only 24% were made available to the public on a same or next day basis. ER 6970. Those numbers conflict with the actual data provided to the district court in
this matter.
5

VSC’s records show that 147 new unlimited civil complaints were filed
between August 8 and September 2, 2011. SER 34. Forty-seven of those new
complaints were received, processed, and placed in the Media Bin all in the same
day, i.e., “same-day access.” Id. Fifty-four of those new complaints were received
on one day and processed and placed in the Media Bin the next day, and another
eighteen were processed and placed in the Media Bin within two days of receipt.
Id. Thus, 77% of new complaints were accessible within two days after receipt,
with the bulk available the same or next day.
Of the remaining twenty-eight complaints, at least seventeen (or another
11%) were directed to a judicial officer for immediate attention or were transferred
from a court in another county. SER 35, 60-61. Another seven complaints were
not placed in the Media Bin due to inadvertent clerical error. SER 35. The
remaining four new complaints that had delayed access all had unusual delays due
to, among other things, an anomaly in processing. Id.
Notably, the record before the district court demonstrates that VSC fares
somewhat better than other superior courts in California when it comes to
providing access to newly-filed civil complaints. According to another CNS
survey, only five courts—which, not coincidentally, maintain electronic files
and/or have considerably more clerks than VSC—provided more immediate access

6

than VSC; the remaining 12 courts failed to achieve the level of “same-day access”
provided in Ventura. SER 88-108.
D.

Starting In November 2010, CNS Demanded “Same-Day Access”
To Newly-Filed Unlimited Civil Complaints.

CNS is an information-gathering entity that sells information regarding civil
lawsuits, primarily to lawyers and law firms. SER 78. In California, CNS collects
and sells information only about “unlimited” civil actions (suits involving more
than $25,000); so far, anyway, it chooses not to cover criminal, family, or limited
civil actions. Id. As a practical matter, CNS’s employee is the only “reporter”
who asks to see VSC’s new case files. SER 54.
Before November 2010, CNS never sought “same-day access” to VSC’s
newly-filed unlimited civil complaints. Rather, between 2001 and 2010, CNS’s
Ventura reporter visited only once or twice each week to identify and review
complaints that likely would be of press interest. ER 67.
CNS changed its business model in November 2010 by asking its reporter to
visit VSC every day. ER 68-69. Around that time, CNS instituted a campaign to
obtain greater access to newly-filed complaints. At the state level, CNS sponsored
a “same-day access” bill in the California Legislature that would obligate state
superior courts to provide same-day access to case-initiating civil and criminal
court records. SER 11-12. While CNS was lobbying the California Legislature to
amend the State’s access laws, CNS urged VSC in particular to “adjust” its
7

procedures to grant “same-day access” to unlimited civil complaints because courts
in other jurisdictions allegedly have the ability to do so. ER 68-69.
In a June 20, 2011 demand letter, CNS insisted that its reporter “be allowed
to see the day’s new unlimited civil filings at the end of each court day.” ER 99.
VSC responded in a July 11, 2011 letter, by explaining that budget considerations
made it “difficult to provide same-day access to new filings” and that VSC could
not prioritize CNS’s interest in “same-day access” “above other priorities and
mandates.” Nonetheless, VSC committed “to make new filings available as early
as is practicable given the demands on limited court resources.” ER 114.
CNS responded by letter that VSC could expedite review of new complaints
by allowing CNS reporters “to go behind the counter to pick up the stack [of
newly-filed complaints]” before they had been processed and placed in case files.
ER 116-117. VSC declined to adopt this approach for a variety of reasons.
First, as the result of a shooting incident in Oxnard—which is located in
Ventura County—VSC tightened its security procedures to prohibit members of
the general public, including reporters, from accessing behind-the-counter
processing desks where new civil complaints are maintained prior to processing.
SER 62.
Second, allowing members of the public to review new civil complaints
before they are processed and placed in the Media Bin risks violating litigant

8

privacy rights. SER 62. For example, litigants who want VSC to waive filing fees
must submit written applications containing personal financial information at the
time they file their complaints. The complaints and their accompanying fee waiver
applications must be maintained together until after they are assigned to a judicial
officer. CPAs remove confidential fee waiver applications and place new
complaints in the Media Bin only after the applications have been approved or
denied by a judicial officer. Id.
Third, CNS’s proposed solution would hinder VSC’s ability to ensure and
promote public trust and confidence in the court and its filings. SER 63.
Complaints that are processed by newly-appointed CPAs are subject to a quality
control review, and are not ready for public review until a supervisor ensures the
CPA has not, for example, processed an incomplete complaint that should be
rejected, or improperly entered crucial case data that would prevent proper tracking
and assignment, or improperly entered an attorney’s contact information. SER 6162.
STATEMENT OF THE CASE
Dissatisfied with VSC’s responses, CNS filed this lawsuit for equitable relief
on September 29, 2011. ER 60. CNS alleged that VSC’s failure to guarantee
“same-day access” to newly-filed unlimited civil complaints violated the First
Amendment of the United States Constitution, federal common law, and California

9

Rule of Court 2.550. ER 71-73. CNS further alleged that VSC could withhold
“same-day access” to these complaints only if it conducted an “adversarial
adjudicative process” so that VSC judges—and not its CPAs—could “consider[]
the propriety of the effective sealing of the record on a case-by-case basis.” ER 71.
Contrary to its repeated claims on appeal, CNS sought considerably more
than a simple injunction requiring VSC to grant “same-day access” to every newlyfiled complaint. Instead, CNS’s proposed injunction would have required VSC to
obtain a “case-by-case” judicial evaluation on any occasion in which “same-day
access” could not be provided:

10

ER 73-74 (emphasis added). Contemporaneous with filing its Complaint, CNS
moved for a preliminary injunction. ER 58.
On October 20, 2011, VSC moved to dismiss the Complaint, opposed CNS’s
motion for preliminary injunction, and moved the district court to abstain from
adjudicating CNS’s claims under the doctrines enunciated in Pullman and O’Shea.
ER 28.
CNS opposed the motion to abstain, but conceded in its Opposition that it
really did want VSC judges to conduct “case-by-case” evaluations on each
occasion in which “same-day access” could not be provided:

SER 138 (emphasis added).
The district court granted VSC’s motion to abstain on November 28, 2011,
finding that abstention was proper under both Pullman and O’Shea, and denied
CNS’s motion for preliminary injunction accordingly. ER 3, 7-9. CNS timely
appealed under 28 U.S.C. § 1291. ER 14.

11

STANDARD OF REVIEW
The decision to abstain pursuant to Pullman is reviewed under a “modified
abuse of discretion standard.” Almodovar v. Reiner, 832 F.2d 1138, 1140 (9th Cir.
1987). Appellate courts review a district court’s factual findings on abstention for
abuse of discretion. United States v. Hinkson, 585 F.3d 1247, 1263 n.23 (9th Cir.
2009) (en banc). They review de novo whether the requirements for Pullman
abstention have been met, Martinez v. Newport Beach City, 125 F.3d 777, 780 (9th
Cir. 1997), and then review the ultimate decision to abstain for abuse of discretion.
Id.; see also Smelt v. County of Orange, 447 F.3d 673, 678 (9th Cir. 2006).1
This Court uses a similar standard when evaluating equitable abstention
pursuant to O’Shea. Fresh Int’l Corp. v. Agric. Labor Relations Bd., 805 F.2d
1353, 1356 n.2 (9th Cir. 1986). “When a case involves abstention on some ground
other than Younger [v. Harris, 401 U.S. 37 (1971)], . . . the standard of review is
one of abuse of discretion, with the discretion to be exercised within the narrow
1

CNS assumes the district court dismissed its complaint pursuant to
Rule 12(b)(6) and argues this Court must assume the truth of its allegations. (ECF
No. 7 at 22 n. 5.) But it generally is recognized that abstention properly is raised
through a Rule 12(b)(1) motion. Charles Alan Wright et al., 5B Federal Practice
& Procedure § 1350 (3d ed. 2012). A Rule 12(b)(1) jurisdictional attack may be
facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Where, as
here, the defendant maintains a factual attack by disputing the truth of the
allegations, the court need not presume the truthfulness of the plaintiff’s
allegations and may review evidence beyond the complaint without converting the
motion to dismiss into a motion for summary judgment. Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
12

and specific limits prescribed by the particular abstention doctrine involved.”
World Famous Drinking Emporium, Inc. v.City of Tempe, 820 F.2d 1079, 1081-82
(9th Cir. 1987) (internal citation omitted).2
SUMMARY OF ARGUMENT
The district court properly abstained from adjudicating CNS’s complaint
under the Pullman and O’Shea doctrines. In the appropriate case, abstention
avoids the unnecessary adjudication of constitutional questions, promotes comity
between the federal courts and state sovereignties, and avoids unseemly
interference with a State’s administration of its own law. All of those benefits are
realized by abstention here, where CNS seeks resolution of a novel constitutional
theory that both can be avoided by the adjudication of state law in state court and
would result in clumsy federal interference with the administration of the
California court system.
All three conditions for Pullman abstention are satisfied. First, CNS’s
Complaint concerns a sensitive issue of social policy: the internal workings of the
California judicial system. California lawmakers presently are considering
whether to compel state trial courts to provide same-day access to newly-filed civil
2

Decisions to abstain under O’Shea are not reviewed de novo, as CNS
suggests. (ECF No. 7 at 21-22.) Where “[t]he decision to abstain involves a
discretionary exercise of a court’s equity powers[,] . . . [t]he test we apply in
reviewing district court abstention decisions is whether there has been an abuse of
discretion.” Pue v. Sillas, 632 F.2d 74, 78 (9th Cir. 1980) (internal quotations and
citations omitted).
13

complaints. In an effort to short-circuit the deliberate legislative process, CNS
requests an injunction that would impose substantial costs on the cash-strapped
court system and effectively compel California courts to reallocate services and
resources from other areas of priority. Under the circumstances, where the
California court system is struggling to provide adequate access to the courts with
an ever-decreasing budget, it is difficult to imagine a more sensitive area of state
concern.
CNS argues that Pullman’s first prong cannot be satisfied in cases involving
the First Amendment. But the United States Supreme Court itself has applied
Pullman abstention in numerous cases involving core First Amendment claims. In
any event, CNS relies on cases where abstention would “chill” the plaintiff’s right
to free expression. This case involves a purported right of “access to information,”
not the right of free expression. There is a fundamental difference between cases
where the government prohibits a speaker from conveying information that it
already possesses and cases, like the one here, where the government allegedly
denies access to information in its own possession. In the latter case, the concept
of “chilling” simply does not apply.
Second, CNS’s novel constitutional claim could be limited or mooted by a
definitive interpretation of California laws that require “reasonable access” to state
court filings. California has enacted a web of constitutional provisions, statutes,

14

and rules of court that create “reasonable access” rights different from those
recognized under the First Amendment. If the right to “reasonable access” is
interpreted by a California court to mean “same-day access,” then CNS’s First
Amendment claim would be narrowed or mooted.
Relying on inapposite authority involving “mirror image” constitutional
provisions, CNS contends that California’s access rules merely mirror the First
Amendment. In fact, however, California’s right of reasonable access is predicated
on a constitutional provision, statute, and court rules that have no counterpart in the
federal system.
Third, the meaning of California’s reasonable access laws is unclear, as no
California court yet has interpreted their reach. CNS contends the California
Supreme Court already has outlined the general contours of the reasonable access
right. Yet the opinion upon which CNS relies concerned an entirely different
“open courtroom” statute, and preceded by years the enactment of most of
California’s reasonable access laws. With all three Pullman factors satisfied, the
district court properly abstained from resolving CNS’s claims.
The district court also properly invoked O’Shea’s doctrine of equitable
abstention. Out of respect for federalism ideals, federal courts may and should
abstain when the plaintiff requests injunctive relief that would intrude on sensitive
state activities, such as the administration of its judicial system. Ordering

15

California courts to provide same-day access to unlimited civil complaints would
result in a significant reallocation of state resources and would require the courts to
invent a new hearing system designed to determine, on a case-by-case basis,
whether court officials properly could deny same-day access to a particular
complaint. If such an unwieldy and burdensome process is to be created at all, the
California legislature should be the entity to establish it.
Moreover, CNS’s injunction would require federal courts to engage in an
ongoing federal audit of the California courts’ access decisions. According to
CNS, its injunction would require California court clerks to provide same-day
access to all newly-filed, unlimited civil complaints unless a state judge conducts a
hearing and excuses them from doing so. CNS then would be permitted to subject
the state judge’s discretionary analysis to review in federal court. Repeated and
frequent challenges to the case-by-case determinations made by judges of the
superior court results in precisely the kind of piecemeal interruption of state
proceedings condemned in O’Shea and other equitable abstention jurisprudence.
CNS mischaracterizes the scope of equitable abstention in an effort to
preclude its application. CNS contends that equitable abstention is available only
when a federal lawsuit involves consideration of the merits of state court decisions.
Yet the precedential value of O’Shea and its progeny stems, in no small part, from

16

its extension of Younger to cases where the plaintiff does not seek to interfere with
ongoing state proceedings.
CNS and its amicus also miss the mark by arguing that equitable abstention
is inappropriate in cases involving claims under the First Amendment. There is no
bright-line rule precluding application of equitable abstention in First Amendment
cases, as evidenced by the plentiful case law applying O’Shea and its progeny in
that very circumstance. Whether a particular case involves claims under the First
Amendment or not, the same standard controls the outcome: does the requested
equitable relief threaten to indirectly interfere with a state’s administration of its
court system? Because CNS’s requested relief would impose substantial burdens
on the California court system and create a procedure for the ongoing audit of
California decisions regarding the right of access, the standard is satisfied easily
here.
ARGUMENT
I.

CALIFORNIA LAW RECOGNIZES A UNIQUE RIGHT OF
“REASONABLE ACCESS” TO DOCUMENTS FILED WITH A
SUPERIOR COURT, INDEPENDENT OF THE FIRST
AMENDMENT.
Contrary to CNS’s claims, this action truly is an exceptional one: CNS

seeks to create an entirely new and constitutionally-guaranteed right of “same-day
access” to all newly-filed unlimited civil complaints. Such a guarantee has not

17

been recognized under the First Amendment or under California’s “reasonable
access” rules.
A.

No Court Has Held That The First Amendment Guarantees A
Right Of “Same-Day” Access To Newly-Filed Civil Complaints.

The United States Supreme Court has not recognized a general First
Amendment guarantee of access to judicial records in civil cases. See Houchins v.
KQED, Inc., 438 U.S. 1, 15 (1978) (“Neither the First Amendment nor the
Fourteenth Amendment mandates a right of access to government information or
sources of information within the government’s control.”); see also Perry v.
Brown, 667 F.3d 1078, 1088 (9th Cir. 2012) (declining to decide whether First
Amendment right of public access applies to civil judicial records). Instead, the
Court has recognized only a rebuttable common law right of access to judicial
records, Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)3, and
has affirmed that, “to the extent that courthouse [civil] records could serve as a
3

Notably, the federal common law right of access only attaches to
“judicial documents,” with most courts holding that “the mere filing of a paper or
document with the court is insufficient to render that paper a judicial document
subject to the right of public access.” United States v. Amodeo, 44 F.3d 141, 145
(2d Cir. 1995); see also Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986).
Before pleadings and documents become part of a dispositive motion, for example,
the presumptive right of access does not apply. See In re Midland Nat’l Life Ins.
Co., --- F.3d ----, 2012 WL 3024192, at *2 (9th Cir. July 25, 2012).
In any event, the scope of the federal common-law right of access is
immaterial in this appeal because CNS filed suit under 42 U.S.C. § 1983, which
does not “incorporat[e] federal common law into its scope.” Hoopa Valley Tribe v.
Nevins, 881 F.2d 657, 662-63 (9th Cir. 1989).
18

source of public information, access to that source customarily is subject to the
control of the trial court.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 n.19
(1984).
Most federal circuit courts recognize a limited or “qualified” First
Amendment right of access to civil judicial documents, but that right “has been
extended only to particular judicial records and documents.” Va. Dep’t of State
Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004); see also United States v.
Bus. of the Custer Battlefield Museum & Store, 658 F.3d 1188, 1192 (9th Cir.
2011) (distinguishing between the right to access judicial proceedings and the right
to inspect and copy judicial records). To determine which documents are entitled
to First Amendment protection, most courts use the “experience and logic” test
articulated in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986), by
asking (1) whether the document is one which has been historically open to
inspection by the press and public, and (2) whether public access plays a
significant positive role in the functioning of the particular process in question. Id.
at 8; Leigh v. Salazar, 677 F.3d 892, 898 (9th Cir. 2012) (applying the PressEnterprise test).
In applying this test, most federal appellate courts recognize “a First
Amendment right of access to civil litigation documents filed in court as a basis for
adjudication,” but decline to extend this right to “materials that are neither used at

19

trial nor submitted as a basis for adjudication.” NBC Subsidiary (KNBC-TV) v.
Superior Court, 20 Cal.4th 1178, 1208 n.25 (1999) (summarizing federal cases).
This is because “there is no right of public access to prejudgment records in civil
cases.” In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1334 &
1336 (D.C. Cir. 1985) (Scalia, J.); 1342 n.3 (Wright, J., concurring in part and
dissenting in part).4
As in the federal system, it similarly is unsettled whether California courts
would recognize a First Amendment right of immediate access to civil judicial
records. See Alvarez v. Superior Court, 154 Cal.App.4th 642, 654 (2007) (“Courts
in this state are divided on the question.”). So far, California courts have held that
the First Amendment right of access applies only to documents that both are “filed
in court” and “used at trial or submitted as a basis for adjudication.” Savaglio v.
Wal-Mart Stores, Inc., 149 Cal.App.4th 588, 596 (2007). Under this standard, it is
dubious that a First Amendment right of access attaches to newly-filed complaints
4

To support its argument that the district court “plainly erred” by
abstaining from deciding the merits of its claims, CNS resorts to a Texas district
court decision where it obtained the kind of preliminary injunctive relief it seeks
here. Courthouse News Serv. v. Jackson, No. 09-1844, 2009 WL 2163609 (S.D.
Tex. July 20, 2009). However, the defendant in that case agreed with CNS’s claim
“that there is a [First Amendment] right of access to newly-filed petitions in civil
cases,” id. at *4, a concession that goes beyond the extant First Amendment case
law. It is for this reason that another district court in Texas already has held that
“Courthouse News does not establish that access to court records and documents is
guaranteed under the First Amendment.” Sullo & Bobbitt, PLLC v. Abbott, No.
11-1926, 2012 U.S. Dist. LEXIS 95223, at *47 (N.D. Tex. July 10, 2012).
20

that can remain inactive in a clerk’s office for 65 days or perhaps longer. See
Mercury Interactive Corp. v. Klein, 158 Cal.App.4th 60, 89-90, 103 (2007)
(despite “the importance of a complaint in framing the claims and issues presented
in civil litigation,” “pleadings, including complaints, are not typically evidentiary
matters that are submitted to a jury in adjudicating a controversy”).
B.

California Law Recognizes A Right Of “Reasonable Access” To
Court Documents Independent Of The First Amendment.

While federal and state courts grapple with the reach of the First
Amendment, California lawmakers have stepped into the breach by creating a
unique body of state law that requires “reasonable access” to civil documents filed
with a state court.
1.

California Government Code § 68150.

In 1994, the California Legislature enacted Government Code section 68150
(“Section 68150”), which authorized superior courts to maintain court records in
electronic format. 1994 Cal. Legis. Serv. Ch. 1030, § 1. As most recently
amended in 2010, Section 68150(l) recognizes a right of “reasonable access” to
court records by providing that electronic court records “shall be made reasonably
accessible to all members of the public for viewing and duplication as the paper
records would have been accessible.” Cal. Gov’t Code § 68150(l) (emphasis
added). The right of “reasonable access” created by Section 68150 extends to
documents only after they have been “filed . . . in the case folder, but if no case

21

folder is created by the court, all filed papers and documents that would have been
in the case folder if one had been created.” Id. § 68151(a)(1); see also Cal. Civ.
Proc. Code § 1904 (defining “judicial record”).
2.

CNS Unsuccessfully Sponsored SB 326, A Bill To Amend
The California Government Code To Require “Same-Day
Access” To Newly-Filed Civil Complaints.

The California Legislature did not define the term “reasonable access” as
used in Section 68150(l). CNS sought to fill this definitional gap in February 2011
by sponsoring a “same-day access” bill, known as Senate Bill 326. SER 11. The
authors of SB 326 recognized that Section 68150 “provides the public with
reasonable access to court records,” but that the term “‘reasonable access’ is not
defined under existing law.” SER 12. Accordingly, the authors proposed to
augment the Government Code by requiring the Judicial Council to adopt a Rule of
Court requiring courts to provide “same-day access to case-initiating civil and
criminal court records, at no cost to the requester, for viewing at the courthouse.”
SER 6-7, 8, 14 (emphasis omitted).
The Judicial Council of California vigorously opposed passage of SB 326,
explaining to legislators that “same-day access” “would be completely unworkable
for the courts.” SER 26. Many courts are unable to meet the same-day standard
“because they must complete basic case processing tasks before they release the
records to the public in order to ensure that they do not release confidential

22

information, that the filing is valid …, and to have sufficient information such that
the court can protect the accuracy and integrity of the record prior to its release.”
SER 27. The Judicial Council warned that to comply with a same-day standard,
“courts would need to hire significantly more staff at a substantial cost.” Id.
SB 326 has been held by the California Assembly Appropriations
Committee since September 2011. It remains there today. SER 24.
3.

California Rules Of Court 2.500(A) And 2.503(A).

In its 2010 amendments to Section 68150, the Legislature directed the
Judicial Council to “adopt rules to establish the standards or guidelines for the
creation, maintenance, reproduction, or preservation of court records . . . .” Cal.
Gov’t Code § 68150(c). The Judicial Council complied with this directive by
adopting Title 2, Division 4 of the Rules of Court relating to maintenance of and
access to trial court records. As relevant here, Rule of Court 2.400(a) provides
that, “[u]nless otherwise provided by these rules or ordered by the court, court
records may only be inspected by the public in the office of the clerk.” Cal. R. Ct.
2.400(a). The Rules of Court further acknowledge that “[u]nless confidentiality is
required by law, court records are presumed to be open,” Cal. R. Ct. 2.550(c), and
that the public has a right of “reasonable access” to them. Cal. Rs. Ct. 2.500(a),
2.503(a).

23

Like Section 68150, Rules 2.500 and 2.503 do not define the term
“reasonable access.” The Advisory Committee comments to these rules do not
mention the First Amendment. The Committee notes explain that Rule 2.500 takes
into account “the limited resources currently available in the trial courts;” balances
the right of access against “the privacy of individuals involved in litigation”; and
can “be modified to provide greater electronic access as the courts’ technical
capabilities improve and with the knowledge gained from the experience of the
courts in providing electronic access under these rules.” Cal. R. Ct. 2.500 advisory
committee’s cmt.5
4.

Article I § 3(b) Of The California Constitution.

On November 3, 2004, the People of the State of California enacted
Proposition 59, which enshrines in the California Constitution a right of access to
government documents. Cal. Const. art I, § 3(b); see generally Comm’n on Peace
Officer Standards & Training v. Superior Court, 42 Cal.4th 278, 288 (2007) (the
right of “access to information concerning the conduct of the people’s business”
now is “enshrined in the state Constitution”). Article I section 3(b) governs any
proceeding to determine the extent of “reasonable access” pursuant to Section
68150(l) and Rules 2.500 and 2.503. In particular, these provisions must be
5

The Advisory Committee’s notes speak of First Amendment standards
only with respect to whether, and under what circumstances, a court record may be
sealed by affirmative order of a superior court judge. See Cal. R. Ct. 2.550(a)(1);
Cal. R. Ct. 2.550 advisory committee’s cmt.
24

construed consistently with the constitutional right of “access to information
concerning the conduct of the people’s business,” and the constitutional mandate
that “the writings of public officials and agencies shall be open to public scrutiny.”
Cal. Const. art. I, § 3(b)(1). Section 68150(l) and Rules 2.500 and 2.503 must also
“be broadly construed” if they “further[] the people’s right of access, and narrowly
construed if [they limit] the right of access.” Id. art. I, § 3(b)(2).
II.

THE DISTRICT COURT PROPERLY ABSTAINED UNDER
PULLMAN.
A.

The Pullman Doctrine Promotes Comity And Avoids Unnecessary
Constitutional Decision-Making.

Even though federal courts have “a virtually unflagging obligation” to
exercise their subject matter jurisdiction, Colorado River Conservation Dist. v.
United States, 424 U.S. 800, 821 (1976), “‘virtually’ is not ‘absolutely.’” 31
Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003). Federal courts
“may decline to exercise their jurisdiction, in otherwise exceptional circumstances,
where denying a federal forum would clearly serve an important countervailing
interest.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996).
The oldest and most established of these “exceptional circumstances” arises
under the Pullman doctrine, which takes its name from Railroad Commission of
Texas v. Pullman Co., 312 U.S. 496 (1941). Pullman abstention recognizes that
the “[p]roper exercise of federal jurisdiction requires that controversies involving

25

unsettled questions of state law be decided in the state tribunals preliminary to a
federal court’s consideration of the underlying federal constitutional questions.”
City of Meridian v. S. Bell Tel. & Tel. Co., 358 U.S. 639, 640 (1959). The doctrine
honors principles of comity and federalism by permitting postponement of the
exercise of federal jurisdiction when “a federal constitutional issue . . . might be
mooted or presented in a different posture by a state court determination of
pertinent state law,” County of Allegheny v. Frank Mashuda Co., 360 U.S. 185,
189 (1959), and by “avoiding unseemly conflict between two sovereignties, the
unnecessary impairment of state functions, and the premature determination of
constitutional questions.” Martin v. Creasy, 360 U.S. 219, 224 (1959).
In the Ninth Circuit, abstention is appropriate under Pullman where three
conditions are satisfied: (1) there are sensitive issues of social policy upon which
the federal courts ought not to enter unless no alternative to its adjudication is
open, (2) constitutional adjudication could be avoided by a state ruling, and (3)
resolution of the state law issue is uncertain. Wolfson v. Brammer, 616 F.3d 1045,
1066 (9th Cir. 2010). The district court correctly found all three conditions were
satisfied.

26

B.

CNS’s Lawsuit Touches Upon Sensitive Areas Of State
Sovereignty.
1.

Lawsuits Challenging The Administrative Operations Of
State Courts Implicate Important Social Policies Of State
Concern.

Pullman’s “‘sensitive social policy’ prong . . . recognizes that abstention
protects state sovereignty over matters of local concern, out of considerations of
federalism, and out of ‘scrupulous regard for the rightful independence of state
governments.’” Almodovar, 832 F.2d at 1140 (citation omitted). CNS’s complaint
satisfies this element for a number of independent reasons.
First, CNS’s complaint threatens to interfere with the administration of court
operations by mandating that VSC guarantee “same-day access” to every new
unlimited civil complaint and that VSC judges conduct case-by-case hearings
when same-day access cannot be achieved. This Court twice has concluded that
administration of the California judicial system is a “sensitive state activit[y].”
E.T. v. Cantil-Sakauye, 682 F.3d 1121, 1124 (9th Cir. 2012) (quoting L.A. Cnty.
Bar Ass’n v. Eu, 979 F.2d 697, 703 (9th Cir. 1992)). The other Courts of Appeals
are in unanimous agreement that the internal working of a state court system is a
sensitive area of state activity that raises heightened comity concerns where federal
intermeddling is requested. E.g., Kaufman v. Kaye, 466 F.3d 83, 86 (2d Cir. 2006);
Pompey v. Broward Cnty., 95 F.3d 1543, 1548-49 (11th Cir. 1996); Ballard v.

27

Wilson, 856 F.2d 1568, 1570 (5th Cir. 1988); Ad Hoc Comm. on Jud. Admin. v.
Mass., 488 F.2d 1241, 1245-46 (1st Cir. 1973).
Second, the activities of California’s lawmakers demonstrate that the right of
reasonable access to court documents is itself an issue of important state concern.
As noted above, the California Legislature first recognized the right of “reasonable
access” to court records in 1994, and has amended these provisions as recently as
2010. In addition, the Legislature currently is grappling with the precise issue
presented by this case through its consideration of SB 326.6 Moreover, the People
of the State of California enacted Article I Section 3(b) in 2004, while the Judicial
Council adopted new Rules of Court to govern the management of records in trial
courts in 2010. See Cal. Rs. Ct. 10.850-10.856.
The State’s active involvement with the issue of access to documents filed in
state court supports the district court’s determination that CNS’s lawsuit touches
on sensitive areas of state policy. See Richardson v. Koshiba, 693 F.2d 911, 916
(9th Cir. 1982) (“The fact that Hawaii amended its constitution to provide for a
merit selection system less than four years ago further demonstrates that this is a
matter of significant local concern.”); Sederquist v. City of Tiburon, 590 F.2d 278,
281-82 (9th Cir. 1978) (finding abstention in light of recent statutory enactments;
6

The fact that SB 326 remains in committee does not, as CNS suggests,
mean that the Legislature chooses not to grapple with the issue of same-day access.
(ECF No. 7 at 27 n.8.) To the contrary, it means that the Legislature has yet to
reach consensus as to whether providing “same-day access” is wise policy.
28

“California is attempting to grapple with difficult land use problems through new
policies and new mechanisms of regulation”).
Third, CNS’s insistence that VSC guarantee “same-day access” to new
complaints must be viewed in the context of the larger budgetary crisis facing
California’s courts. VSC’s budget alone has shrunk by more than $13 million over
the past three years; its deficit should exceed $12 million in 2012; and its staffing
levels and court business hours have been substantially reduced. SER 110-113.
“[M]ost” California courts could not comply with a same-day access requirement
“using current court resources without diverting staff from other mandated duties.”
Assembly Comm. On Appropriations, Comm. Report For 2011 California Senate
Bill No. 326 (August 25, 2011), http://www.leginfo.ca.gov/pub/1112/bill/sen/sb_0301-0350/sb_326_cfa_20110824_162046_asm_comm.html, last
viewed July 24, 2012; SER 27.
“Federalism concerns are heightened when … a federal court decree has the
effect of dictating state or local budget priorities. States and local governments
have limited funds. When a federal court orders that money be appropriated for
one program, the effect is often to take funds away from other important
programs.” Horne v. Flores, 557 U.S. 433, 448 (2009); see also Eu, 979 F.2d at
710 (“The people of the State of California, through their [system of] elected
representatives, are entitled in our system of federalism to decide how much of

29

their money to put into courts, as well as the other activities in which they choose
to have their state government participate.”) (Kleinfeld, J., concurring).
Fourth, CNS’s lawsuit cannot be viewed in isolation as “just” affecting the
operations of the VSC. As it has done with the opinion it procured in Courthouse
News Service v. Jackson, 2009 WL 2163609, CNS undoubtedly seeks to use a
ruling in this case to compel other superior courts also to guarantee “same-day
access” to newly-filed civil complaints and to case-by-case hearings whenever a
court clerk fails on that guarantee.7 As the Third Circuit explained in analogous
circumstances, the first Pullman factor’s considerations of comity plainly are
implicated where, as here, the plaintiff seeks federal interference in the internal
operations of a state court. Hughes v. Lipscher, 906 F.2d 961, 967 (3d Cir. 1990).
For at least these reasons, the district court properly found that CNS’s lawsuit
satisfied the first Pullman factor.
2.

Cases Excusing Abstention In Freedom Of Expression
Lawsuits Are Inapposite.

Citing Porter v. Jones, 319 F.3d 483, 492 (9th Cir. 2003), Sable
Communications of California, Inc. v. Pacific Telephone & Telegraph Co., 890
7

At present, CNS’s request for same-day access is limited to unlimited civil
complaints. Yet if a First Amendment right to unlimited civil complaints is
established, it is difficult to imagine why that right would not extend to criminal
indictments or informations (see, e.g., Sullo & Bobbitt, 2012 U.S. Dist. LEXIS
95223 at *2), limited civil complaints, and other introductory pleadings. If
anything, therefore, the anticipated disruption threatened by CNS’s lawsuit is
greater than contemplated in this brief.
30

F.2d 184, 191 (9th Cir. 1989), and related cases, CNS argues that Pullman
abstention “is ‘almost never appropriate in first amendment cases’” (ECF No. 7 at
17), because a refusal to rule on the merits of CNS’s motion for preliminary
injunction results “in the suppression of free speech that is meant to be protected
by the Constitution.” (Id. at 25 n.7.) But that general principle has no application
here for several related reasons.
First, this is not a “free expression” case, but an “access to information”
case, a distinction federal courts repeatedly recognize. E.g., Nixon, 435 U.S. at
608-09 (“[T]he issue presented in this case is not whether the press must be
permitted access to public information to which the public generally is guaranteed
access, but whether these copies of the White House tapes . . . must be made
available for copying.”); Levine v. U.S. Dist. Court, 764 F.2d 590, 594 (9th Cir.
1985) (distinguishing between the media’s right to gather information and the right
of free expression).
This distinction is important because, contrary to CNS’s assertion, an
alleged restriction on access to information is not tantamount to suppression of free
speech regarding that information, once it is obtained. For example, in Los
Angeles Police Department v. United Reporting Publishing Corp., 528 U.S. 32
(1999), the Supreme Court rejected the argument that a California statute
prohibiting the release of an arrestee’s information for commercial purposes

31

abridges the right to engage in speech about that information. It held that “the
section in question is not an abridgment of anyone’s right to engage in speech, be it
commercial or otherwise, but simply a law regulating access to information in the
hands of the police department.” Id. at 40. The Court explained, “[t]his is not a
case in which the government is prohibiting a speaker from conveying information
that the speaker already possesses.” Id. Rather, the Court found, “what we have
before us is nothing more than a governmental denial of access to information in
its possession. California could decide not to give out arrestee information at all
without violating the First Amendment.” Id.
More pertinent to the facts here, the court in Sullo & Bobbitt, 2012 U.S. Dist.
LEXIS 95223, at *35, held that a plaintiff who sued under the First Amendment to
enforce his purported right to access court documents failed to invoke the First
Amendment’s right to commercial free speech. As the court explained, there is a
fundamental difference between the right to communicate information that has
been obtained, on the one hand, and the right to access government information on
demand, on the other. Id.
CNS cannot claim that VSC suppressed a right of free expression to report
on new complaints merely because VSC may have delayed in providing access to
them. Zemel v. Rusk, 381 U.S. 1, 16-17 (1965) (government’s refusal to validate
passports to Cuba “render[ed] less than wholly free the flow of information

32

concerning that country,” but did not violate the First Amendment because “[t]he
right to speak and publish does not carry with it the unrestrained right to gather
information”). CNS’s reliance on cases refusing to abstain from deciding free
expression claims fails accordingly.
Second, even if this was a First Amendment expression case, the preference
against abstention is not applicable where the danger of chilling protected speech is
absent. Almodovar, 832 F.2d at 1140 (“[T]here is no absolute rule against
abstention in first amendment cases. The fears of chill that justify our preference
against abstention in first amendment cases are not present in this instance.”).
In First Amendment parlance, “chilling” occurs when a government actor
takes “regulatory, proscriptive, or compulsory” action that punishes or threatens to
punish protected speech. Laird v. Tatum, 408 U.S. 1, 11 (1972). In this case, VSC
neither has punished nor sought to punish CNS for doing anything. To the
contrary, VSC acknowledges that CNS has a right of reasonable access to the
court’s files, and has made the processing of newly-filed complaints its “highest
priority.” Because CNS has not identified “an inhibiting or constrictive impact on
First Amendment activity” arising “from the present or future exercise, or
threatened exercise, of coercive power,” CNS is not entitled to complain about
“chilling.” Reporters Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030,
1052 (D.C. Cir. 1978); L.A. Police Dep’t., 528 U.S. at 41-42 (the fact that a law is

33

“nothing but a restriction upon access to government information . . . eliminates
any ‘chill’ upon speech that would allow a plaintiff to complain about the
application of the statute”) (Scalia, J., concurring); Am. Family Ass’n Inc. v. City &
Cnty. of S.F., 277 F.3d 1114, 1124 (9th Cir. 2002) (“[W]hen the challenged
government action is neither regulatory, proscriptive or compulsory, alleging a
subjective chilling effect on free exercise rights is not sufficient to constitute a
substantial burden.”).8
Third, this Court has applied the presumption against abstention only where
the “First Amendment questions involved activities more clearly within the
protections of the First Amendment than this issue.” Smelt v. Cnty. of Orange, 374
F. Supp. 2d 861, 867-68 (C.D. Cal. 2005), aff’d in relevant part by 447 F.3d 673
(9th Cir. 2006). In Smelt, a same-sex couple argued that their First Amendment
free expression rights were violated by the federal Defense of Marriage Act. 374
F. Supp. 2d at 867. The district court abstained under Pullman, concluding that
8

None of the cases cited by CNS suggest the same “chilling”
considerations that warrant a presumption against abstention in free expression
cases should apply here. In the two appellate cases CNS cites regarding press
access to court proceedings, the courts declined to apply Pullman abstention
because there was no unsettled issue of state law that could avoid a constitutional
ruling. See Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100 (2d Cir. 2004)
(“The most important difference between this case and one in which Pullman
abstention would be appropriate is that … there is no applicable state statute.”);
Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 322 (1st Cir. 1992) (“No uncertainty
surrounds the meaning of Rule 23(c)’s closure provision.”). As shown infra in Part
II(D), the same cannot be said here.
34

marriage is a sensitive policy issue particularly within the province of a state and
that, notwithstanding the plaintiffs’ free expression claim, abstention was
appropriate because “[i]t is not readily apparent obtaining a marriage license is
protected First Amendment activity.” Id. This Court affirmed, holding that “it is
difficult to imagine an area more fraught with sensitive social policy considerations
in which federal courts should not involve themselves” than the area of marriage.
Smelt, 447 F.3d at 681.
As in Smelt, it is far from clear that the First Amendment guarantees sameday access to unlimited civil complaints. Indeed, as shown supra, both federal and
California courts have declined to apply First Amendment protection to civil
documents that, like complaints, are not used at trial or submitted as a basis for
adjudication.
Finally, and in any event, CNS grossly overstates the law by suggesting
abstention always is inappropriate in cases involving the chilling of a plaintiff’s
free expression rights. Indeed, the Supreme Court frequently has applied Pullman
abstention in cases involving free expression claims under the First Amendment.
For example, in Babbitt v. United Farm Workers National Union, 442 U. S.
289 (1979), the Supreme Court was asked to determine whether the criminal
penalty provisions of Arizona’s Agricultural Relations Act were unconstitutionally
overbroad in violation of the First Amendment. The Court abstained from

35

deciding the question because the statute had not yet been construed by Arizona’s
courts, and could be narrowly interpreted to avoid First Amendment infirmities,
explaining that “we think the Arizona courts should be ‘afforded a reasonable
opportunity to pass upon’ the section under review.” Id. at 308 (citation omitted).
Similarly, in Harrison v. NAACP, 360 U.S. 167 (1959), the Supreme Court
was asked to decide whether a Virginia state statute violated the First Amendment
rights of free speech and access to the courts by requiring supporters of racial
integration to register with the Virginia Corporations Commission. Id. at 171-73.
Citing to Pullman and other cases, the Court explained that “federal courts should
not adjudicate the constitutionality of state enactments fairly open to interpretation
until the state courts have been afforded a reasonable opportunity to pass upon
them.” Id. at 176. The Court applied this principle to abstain from ruling on the
subject statutes so that they could first be construed by the state courts. Id. at 178.
In short, Babbitt, Harrison, and analogous circuit court authority9 support
abstention here, even if VSC’s alleged refusal to guarantee “same-day access” to
9

E.g., Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law
Comm., 283 F.3d 650, 657 (5th Cir. 2002) (abstaining under Pullman from
deciding First Amendment challenge to Texas State Bar Act); Gottfried v. Med.
Planning Servs., Inc., 142 F.3d 326, 328-31 (6th Cir. 1998) (abstaining under
Pullman from deciding First Amendment challenge to a state injunction against
abortion protesting); Word of Faith World Outreach Ctr. Church, Inc. v. Morales,
986 F.2d 962, 963 (5th Cir. 1993) (district court should have abstained under
Pullman from deciding whether “threatened investigation violated the church’s
First Amendment associational and religious freedoms”).
36

newly-filed civil complaints somehow chills CNS’s right to free expression. The
right of access CNS invokes could be vindicated in a single state-court proceeding
without even reaching the novel First Amendment access issues implicated in this
case. See Cal. Civ. Proc. Code § 1085; Part III(C)(2), infra.
C.

CNS’s Claim Could Be Narrowed Or Mooted By An
Interpretation Of California’s “Reasonable Access” Laws.

The second Pullman factor asks whether the plaintiff’s complaint poses a
federal constitutional question that could be mooted or narrowed by a definitive
ruling on an issue of state law. Spoklie v. Mont., 411 F.3d 1051, 1055 (9th Cir.
2005). This aspect of Pullman recognizes that the “[p]roper exercise of federal
jurisdiction requires that controversies involving unsettled questions of state law be
decided in the state tribunals preliminary to a federal court’s consideration of the
underlying federal constitutional questions.” Meridian, 358 U.S. at 640-41. The
state law question need not eliminate the need to decide the federal constitutional
question. Instead, “it is enough that the state court determination may obviate, in
whole or in part, or alter the nature of the federal constitutional questions.” C-Y
Dev. Co. v. City of Redlands, 703 F.2d 375, 379 (9th Cir. 1983).
1.

Interpretation Of California’s Right Of “Reasonable
Access” Could Obviate Or Narrow CNS’s First Amendment
Access Claim.

The second Pullman factor is satisfied easily here: A ruling on CNS’s
claim, that the First Amendment somehow guarantees “same-day access” to newly-

37

filed civil complaints, could be obviated or at least narrowed by a state court ruling
as to the scope of the right of “reasonable access” recognized in California law.
See Harris Cnty. Comm’rs Court v. Moore, 420 U.S. 77, 84-85 (1975) (Pullman
abstention appropriate where state law issue turns on the “unsettled relationship
between the state constitution and a statute”); Reetz v. Bozanich, 397 U. S. 82, 87
(1970) (Pullman abstention appropriate when the “the nub of the whole
controversy may be the state constitution”). Indeed, abstention is “particularly
appropriate” here because, as shown above, the relevant state provisions implicate
a state constitutional provision and state statute that “differ[] significantly” from
the First Amendment. Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d
791, 806 (9th Cir. 2001).
2.

CNS’s “Mirror Image” Argument Fails Because There Are
No Federal Constitutional Counterparts To California’s
Specialized Access Provisions.

Citing Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 237 n.4 (1984),
Examining Board v. Flores de Otero, 426 U.S. 572, 598 (1976), and this Court’s
decision in Pue v. Sillas, 632 F.2d 74, 79-81 (9th Cir. 1980), CNS notes that the
second Pullman factor cannot be satisfied when the state law provision in question
mirrors federal law. (ECF No. 7 at 29-32.) CNS then invokes the California
Supreme Court’s decision in NBC Subsidiary, 20 Cal. 4th at 1208 n.25, to suggest

38

that Section 68150 and Rule of Court 2.550 “mirror” the First Amendment because
they must be construed consistently with it. (ECF No. 7 at 30.)
Rule of Court 2.550, however, does not mention the right of “reasonable
access” to court documents; it merely prescribes the findings judges must make
before sealing judicial records. Moreover, CNS’s argument fails to even mention
Article I, section 3(b) or Rules of Court 2.500 and 2.503, let alone explain how
these key provisions “mirror” the First Amendment. Put simply, this is not a
“mirror image” case. The rule typically applies in due process and equal
protection cases where the defendant invokes a state constitutional provision that is
the same as—or “mirrors”—its federal counterpart; if Pullman applied in that
circumstance “abstention would be necessary, or at least within the power of the
district judge, in nearly every civil rights action.” Stephens v. Tielsch, 502 F.2d
1360, 1362 (9th Cir. 1974).
Yet the rule does not apply, and abstention is appropriate, in cases requiring
interpretation of a “specialized state constitutional provision,” Columbia Basin,
268 F.3d at 806 (citation omitted), or “an integrated scheme of related [state]
constitutional provisions, statutes, and regulations” that lacks a federal counterpart.
Moore, 420 U.S. at 84 n.8.
This case requires interpretation of an integrated scheme of state-law
provisions, including Article I section 3(b)—a specialized state constitutional

39

provision—as well as Section 68150 and Rules 2.500 and 2.503.10 These
provisions do not mirror anything in the federal Constitution, let alone the First
Amendment.11 See Alvarez, 154 Cal.App.4th at 656-57 (considering whether
Article I, section 3(b) created a right of access to post-indictment grand jury
transcripts only after determining the First Amendment right of access did not
apply). CNS’s “mirror argument” fails accordingly.
CNS’ reliance on NBC Subsidiary (KNBC-TV) v. Superior Court, 20 Cal.4th
1178 (1999), to support its “mirror image” argument (ECF No. 7 at 30), is equally
misplaced for several reasons.
First, NBC Subsidiary held only that its interpretation of California’s “open
courtroom” statute (Cal. Civ. Proc. Code § 124)—a statute not at issue here—was
“informed by” the First Amendment and must be construed “in a fashion that
10

For purposes of abstention, it is irrelevant that CNS neglected to
predicate its Complaint on California’s “reasonable access” laws. See Pustell v.
Lynn Pub. Schs., 18 F.3d 50, 53 n.5 (1st Cir. 1994) (holding a plaintiff “cannot
avoid abstention by excluding crucial state law issues from their pleadings”).
11

A different section of the California Constitution recognizes the rights
of free speech and free press. See Cal. Const. art. I, § 2(a) (“Every person may
freely speak, write and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not restrain or abridge liberty of
speech or press.”). But even this provision would not qualify for “mirror image”
treatment under Pullman because it is broader and more protective than the First
Amendment free speech clause. L.A. Alliance for Survival v. City of L.A., 22
Cal.4th 352, 366-67 (2000). When a state constitutional provision mirrors a
federal counterpart, abstention is appropriate if the state provision provides greater
protection than exists under the United States Constitution. Fields v. Rockdale
Cnty. Ga., 785 F.2d 1558, 1561 (11th Cir. 1986).
40

avoids rendering its application unconstitutional.” 20 Cal.4th at 1216; see also id.
at 1181. NBC Subsidiary’s holding regarding open courtrooms has nothing to do
with state laws requiring “reasonable access” to court documents.
Second, the Supreme Court’s 1999 opinion could not have interpreted
Article I, section 3(b) or Rules 2.500 and 2.503, which were enacted five and nine
years (respectively) after the Court decided NBC Subsidiary.
Third, CNS proves too much by arguing that Pullman abstention is
inappropriate whenever state laws must be construed consistently with the federal
Constitution. Indeed, CNS’s argument would negate the Pullman doctrine in its
entirety, inasmuch as the Supremacy Clause requires that all state laws are
subordinate to, and must not violate, the federal Constitution. U.S. Const. art. VI,
cl. 2.
The mere fact that state courts are obligated to construe state and local law
in accordance with federal constitutional principles does not, by itself, warrant
rejection of Pullman abstention. See Lake Carriers’ Ass’n v. MacMullan, 406 U.S.
498, 512 (1972) (“We do not know, of course, how far Michigan courts will go in
interpreting the requirements of the state Watercraft Pollution Control Act in light
of the federal Water Quality Improvement Act and the constraints of the United
States Constitution. But we are satisfied that authoritative resolution of the
ambiguities in the Michigan law is sufficiently likely to avoid or significantly

41

modify the federal questions appellants raise to warrant abstention, particularly in
view of the absence of countervailing considerations that we have found
compelling in prior decisions.”).
Under analogous circumstances, this Court consistently has held that
abstention is appropriate. For example, in Manney v. Cabell, 654 F.2d 1280 (9th
Cir. 1980), the plaintiffs filed a class action under 42 U.S.C. § 1983, challenging
the conditions of confinement at a juvenile detention facility under the Eighth
Amendment’s prohibition against cruel and unusual punishment. On appeal, the
defendant argued for Pullman abstention, noting that state statutes required the
state to provide a juvenile with custody and care “‘nearly as possible equivalent to
that which should have been given by his parents.’” Id. at 1283 (citing Cal. Welf.
& Inst. Code §§ 202, 851). As in this case, there was no question that the state
statutes had to be interpreted consistently with the Eighth Amendment. Critically,
however, the standard expressed in the state law could “be interpreted to require
that conditions at juvenile halls be more favorable to the juvenile than the
minimum standards guaranteed by the federal constitution.” Id. at 1284. The
second Pullman factor therefore was satisfied because “[a] review by the
California courts of the conditions of confinement at CJH under the statutory
standards could well obviate the need for a constitutional adjudication of the
conditions of confinement.” Id.

42

As in Manney, there is no dispute that Article I section 3(b), Section
68150(l), and Rules 2.500 and 2.503 must be interpreted consistently with the First
Amendment. Yet it is possible that a California court will interpret the statute to
provide greater or different rights than the First Amendment. If a California court
were to decide the state-law mandate of “reasonable access” created a guarantee of
“same day access” to newly-filed civil complaints, CNS will obtain all the relief it
seeks without a federal decision on its First Amendment claims. The second
Pullman factor is, accordingly, satisfied.
D.

The Proper Interpretation Of State Law Is In Doubt.

The third Pullman factor—that the state law issue must be in doubt—is met
when the state law “is ‘susceptible’ of an interpretation that would avoid or modify
the federal constitutional question.” Badham v. U.S. Dist. Court, 721 F.2d 1170,
1177 (9th Cir 1983) (citation omitted).
The district court correctly concluded that state law is uncertain. Article I
section 3(b), Section 68150, and Rules of Court 2.500 and 2.503 are silent as to
whether the right of “reasonable access” creates a guarantee of “same-day access”
to newly-filed complaints. These authorities do not facially require same-day
access, but do not expressly prohibit same-day access, either, which is why CNS
argued for passage of SB 326. SER 12. “[I]f reasonable access were defined to
mean ‘same day access,’ this would avoid the necessity of this Court deciding the

43

federal constitutional issues, a determination that may be premature at this time.”
ER 9.
CNS contends the third Pullman factor is not satisfied because the California
Supreme Court provided the “general contours of the issue” in NBC Subsidiary.
(ECF No. 7 at 34.) However, as previously explained, NBC Subsidiary did not
mention or cite Article I section 3(b), Section 68150, or Rules 2.500 or 2.503.
Similarly, NBC Subsidiary did not describe the “general contours” of a state-law
right of “reasonable access” to court documents, let alone whether such a right
might guarantee “same-day access” to newly-filed civil complaints.
In short, as the Sixth Circuit recognized in a slightly different context, just
because “court clerks have denied [CNS] the relief it seeks does not mean that
[California] law would not provide for such access were [CNS] to assert such a
right in the [California] courts pursuant to the statutory provisions at issue, which it
has not done.” Ky. Press Ass’n, Inc. v. Kentucky, 454 F.3d 505, 509-10 (6th Cir.
2006). This Court should affirm the district court’s abstention order accordingly.
III.

THE DISTRICT COURT PROPERLY INVOKED THE DOCTRINE
OF EQUITABLE ABSTENTION.
A.

Federal Courts Have The Right And Obligation To Refrain From
Exercising Equity Jurisdiction In Cases That Seek to Impose
Ongoing Audits of State Courts.

The doctrine of equitable abstention derives from the inherent right of equity
courts to “grant or deny relief upon performance of a condition which will

44

safeguard the public interest.” Burford v. Sun Oil Co., 319 U.S. 315, 333 n.29
(1943); see also New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S.
350, 359 (1989) (finding the obligation to exercise federal jurisdiction does “not
call into question the federal courts’ discretion in determining whether to grant
certain types of relief -- a discretion that was part of the common-law background
against which the statutes conferring jurisdiction were enacted”).
Equitable abstention recognizes that “[a] federal court . . . is not the proper
forum to press” general complaints about the way in which government goes about
its business, City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983), because,
“[u]nlike Congress, which enjoys discretion in determining whether and what
legislation is needed to secure the guarantees of the Fourteenth Amendment,
federal courts have no comparable license and must always observe their limited
judicial role.” Missouri v. Jenkins, 515 U.S. 70, 112-13 (1995) (internal quotation
marks and citations omitted) (O’Connor, J., concurring); see also Lewis v. Casey,
518 U.S. 343, 349 (1996) (“[I]t is not the role of courts, but that of the political
branches, to shape the institutions of government in such fashion as to comply with
the laws and the Constitution.”).
In addition, the doctrine recognizes that when exercise of authority by state
officials is attacked, federal courts must be constantly mindful of the “special
delicacy of the adjustment to be preserved between federal equitable power and

45

State administration of its own law.” Stefanelli v. Minard, 342 U.S. 117, 120
(1951). Federal courts, which “subsist[] side by side with 50 state judicial,
legislative, and executive branches,” must give appropriate consideration “to
principles of federalism in determining the availability and scope of equitable
relief.” Rizzo v. Goode, 423 U.S. 362, 379 (1976); see also Allegheny Airlines,
Inc. v. Pa. Pub. Util. Comm’n, 465 F.2d 237, 243 (3d Cir. 1972) (noting the
primary concern animating equitable abstention is the avoidance of “friction
caused by interference with the orderly procedures and rules of state regulatory
bodies”) (emphasis omitted).
The doctrine of equitable abstention authorizes federal courts to abstain from
exercising jurisdiction when the requested form of equitable relief “would
indirectly accomplish the kind of interference that Younger and related cases
sought to prevent,” and when a federal lawsuit seeks “to impose an ongoing federal
audit of state . . . proceedings.” E.T., 682 F.3d at 1123 (quotation marks and
citations omitted). Hence, equitable abstention can be applied even when the
interference does not “‘target[] the conduct of a proceeding directly.’” Bice v. La.
Pub. Defender Bd., 677 F.3d 712, 717 (5th Cir. 2012) (quoting Joseph A. ex rel.
Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002)).
For example, in O’Shea v. Littleton, 414 U.S. 488 (1974), the plaintiffs
sought to enjoin state judges from discriminating against African Americans in

46

certain criminal court proceedings. Id. at 491-92. In holding that the district court
should have abstained from hearing the class claims, the Supreme Court
recognized that abstention doctrines are not limited to federal lawsuits that
interfere with ongoing state proceedings, as was the case in Younger v Harris. The
Court went beyond Younger to hold that “an injunction aimed at controlling or
preventing the occurrence of specific events that might take place in the course of
future state criminal trials” amounted to “nothing less than an ongoing federal
audit of state criminal proceedings which would indirectly accomplish the kind of
interference that Younger . . . sought to prevent.” Id. at 500 (emphasis added).
The Court further held abstention is appropriate to prevent federal courts from
becoming monitors of state-court operations: “[M]onitoring of the operation of
state court functions . . . is antipathetic to established principles of comity,” and
amounts to “a major continuing intrusion of the equitable power of the federal
courts into the daily conduct of state criminal proceedings,” which would sharply
conflict “with the principles of equitable restraint….” Id. at 501-02.
O’Shea’s interference principles have been applied in other settings. In
Rizzo v. Goode, for example, the Supreme Court held that a district court should
have abstained from issuing an injunction requiring the City of Philadelphia’s
Police Department to “draft, for the court’s approval, ‘a comprehensive program
for dealing adequately with civilian complaints,’” pursuant to court-mandated

47

“guidelines.” Id. at 369-70. The Court explained that federalism principles apply
to lawsuits against “the judicial branch of the state government” as well as against
“those in charge of an executive branch of an agency of state or local
governments,” and held that “[w]hen it injected itself by injunctive decree into the
internal disciplinary affairs of this state agency, the District Court departed from
these precepts.” Id. at 380; see also Kelley v. Johnson, 425 U.S. 238, 247-48
(1976) (“the District Court was quite right in the first instance to have dismissed
respondent’s complaint. Neither this Court, the Court of Appeals, nor the District
Court is in a position to weigh the policy arguments in favor of and against a rule
regulating hairstyles as a part of regulations governing a uniformed civilian
service”).
The doctrine of equitable abstention as articulated in O’Shea, Rizzo and
Kelley finds particular applicability when the requested relief “would entail heavy
federal interference in such sensitive state activities as administration of the
judicial system.” Eu, 979 F.2d at 703. Indeed, “‘[w]hen the state agency in
question is a state court . . . the equitable restraint considerations appear to be
nearly absolute.’” E.T., 682 F.3d at 1125 (quoting Parker v. Turner, 626 F.2d 1, 7
(6th Cir. 1980)). In this context, the doctrine sustains “the special delicacy of the
adjustment to be preserved between federal equitable power and State
administration of its own law”; prevents issuance of injunctions “aimed at

48

controlling or preventing the occurrence of specific events that might take place in
the course of future state” proceedings; and relieves federal courts from the
obligation of enforcing injunctive relief orders through the continuous supervision
of future state court proceedings, “a form of the monitoring of the operation of
state court functions that is antipathetic to established principles of comity.”
O’Shea, 414 U.S. at 500-01.
B.

CNS’s Complaint Is Barred By The Doctrine Of Equitable
Abstention.

The district court invoked the doctrine of equitable abstention because the
relief sought by CNS impermissibly would interfere with court operations by
requiring VSC to provide “same-day access” to all newly-filed civil complaints
and by requiring VSC to conduct “judicial proceedings to evaluate the
constitutionality of each delay.” ER 7-8. The court further recognized that such an
order could lead “to a significant reallocation of court services” that was “better
left to elected representatives,” rather than a district court. Id. The district court’s
decision should be affirmed for several reasons.
First, the remedy sought by CNS runs afoul of the “well-established rule that
the Government has traditionally been granted the widest latitude in the ‘dispatch
of its own internal affairs.’” Rizzo, 423 U.S. at 378-79. As the district court
correctly found, ordering VSC to provide “same-day access” to unlimited civil
complaints could lead “to a significant reallocation of court resources.” ER 8.
49

VSC’s Civil Clerk’s Office operates under a heavy workload, with limited
resources that continue to decrease as budgetary deficits increase. SER 50-52,
110-113. To satisfy an order compelling same-day access, VSC administrators
would either be required to transfer CPAs from other departments to handle the
workload, or find an additional source of funding. Such equitable relief,
implicating the balance of budget priorities and state polices, is beyond the
institutional competence of a federal court and constitutes an “abrasive and
unmanageable intercession” in state court institutions. O’Shea, 414 U.S. at 504;
see also Ad Hoc Comm., 488 F.2d at 1246 (“While the state judiciary might
appreciate additional resources, it would scarcely welcome the intermeddling with
its administration which might follow.”).
In addition and despite its claim to the contrary (ECF No. 7 at 35), CNS’s
proposed injunction would have required VSC’s staff and judges to create a new
hearing system—one that is not presently conducted in any court in the State of
California—and to use the substantive standards enunciated in Globe Newspaper
Co. v. Superior Court, 457 U.S. 596, 608-09 (1982), to determine on a case-bycase basis whether its CPAs properly could deny “same-day access” to any
particular newly-filed civil complaint. ER 73-74; see also ER 71 ¶ 33; SER 138.
It is for this reason that CNS’s reliance (ECF No. 7 at 42), upon Tarter v.
Hury, 646 F.2d 1010 (5th Cir. 1981), and the “dividing line” it supposedly

50

recognizes, is entirely misplaced. The Fifth Circuit in Tarter declined to abstain
from those portions of a federal lawsuit seeking an “injunction requiring that all
pro se motions be docketed and considered by the court.” Id. at 1013-14. The
order in Tarter did not attempt to prescribe the specific time at which those
motions would be docketed, nor the standards by which such motions would be
decided, and did not provide a basis for substantive review of that order in federal
court.12
Apart from the fact that such a procedure would impose additional
administrative burdens on already overworked CPAs, it surely will engender the
precise type of access delays CNS claims to abhor. The district court properly
abstained for this reason alone. See Lawson v. Hill, 368 F.3d 955, 960 (7th Cir.
2004) (“A particularly appealing case for withholding injunctive relief is … when
an injunction is sought against the performance of public functions by the officials
of another sovereign.”).
Second, any failure by VSC’s CPAs to provide same-day access to a
particular newly-filed complaint, or by VSC’s judges to conduct a “proper” access
denial hearing, could subject VSC and its staff to contempt proceedings in federal
12

In E.T. v. Cantil-Sakauye, this Court distinguished away CNS’s other
authority, Los Angeles County Bar Association v. Eu, 979 F.2d 697, 703 (9th Cir.
1992), on similar grounds. See 682 F.3d at 1123-24 (noting Eu did not involve
substantive review of any cases pending in Los Angeles Superior Court, but simply
asked, on the basis of statistics, whether the number of judges in Los Angeles
Superior Court should be increased).
51

court. This is the precise type of monitoring the equitable abstention doctrine was
designed to prevent. E.g., O’Shea, 414 U.S. at 501-02; E.T., 682 F.3d at 1124;
McKusick v. City of Melbourne, Fla., 96 F.3d 478, 488 (11th Cir. 1996) (denying
injunction that “would thrust the federal court into an unseemly, repetitive, quasisystematic, supervisory role over administration of the state court injunction”); 31
Foster Children, 329 F.3d at 1279 n.11 (noting “a case cannot be decided in a
vacuum,” and “potential enforcement difficulties” must be considered when
deciding to abstain); Wolfe, 275 F.3d at 1268-69 (looking to interference
occasioned by “enforcement” of decree); Pompey, 95 F.3d at 1550 (“If a state
judge does not obey a district judge’s injunction, are we willing to jail the state
judge for contempt?”); Hoover v. Wagner, 47 F.3d 845, 851 (7th Cir. 1995)
(“[W]ould that put the prosecutor, the judge, and, if there were a jury, the jury in
contempt of the federal injunction?”); Ballard, 856 F.2d at 1570 (noting “a federal
court ruling on the practices and procedures of the municipal court system . . .
would require supervisory enforcement of the ruling by the federal courts” and
“[t]his type of monitoring of state court procedures . . . offends principles of
federalism”).
CNS’s legislative attempts to enact a “same-day access” statute underscore
the propriety of the district court’s abstention decision. The California Legislature,
while still considering the issue, has not yet enacted a “same-day access” law in the

52

face of criticism from the Judicial Council of California that such a requirement
would add $5-10 million in annual costs the Judicial Branch can ill afford. SER
27. The California Legislature is the appropriate body to determine how to pay for
that additional cost, and whether the benefit of “same-day access” is worth it. The
appropriate forum has not shifted to the federal courts merely because the CNS has
not yet persuaded the Legislature of the righteousness of its business model.
C.

CNS Has Not Demonstrated That The District Court Abused Its
Discretion In Invoking Equitable Abstention.

CNS advances a number of arguments against equitable abstention in this
case. None of them are persuasive.
1.

Equitable Abstention Is Not Limited To Cases In Which
The Federal Plaintiff Challenges The Merits Of State Court
Proceedings.

CNS’s first argument, that abstention is not available when a federal lawsuit
“involves no consideration of the merits of any decision of any state court judge”
(ECF No. 7 at 36-43), reflects a fundamental misunderstanding of the equitable
abstention doctrine as applied by O’Shea and related cases. As explained above,
the doctrine applies when litigants seek federal court injunctions to reform the
institutions of state government. The doctrine is not limited to cases in which
federal litigants only seek to affect the merits or outcome of present or future
judicial proceedings. E.g., Rizzo, 423 U.S. at 378-79 (policy regarding
investigation of community complaints); Kelley, 425 U.S. at 247-48 (police hair

53

length regulation); Lyons, 461 U.S. at 112-13 (police policy regarding choke
holds); Kaufman, 466 F.3d at 86 (practice of assigning cases to appellate panels).
In arguing otherwise, CNS directs the Court to cases in which federal courts
declined to abstain pursuant to the Younger v. Harris branch of federal abstention.
(E.g., ECF No. 7 at 37-38, 48). But these cases are clearly inapposite.
Younger abstention is limited to cases where federal relief would interfere
with ongoing state judicial proceedings and the federal plaintiff has an opportunity
to raise the federal claims in the state proceedings. E.g., Middlesex Cnty. Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); AmerisourceBergen
Corp. v. Roden, 495 F.3d 1143, 1149 (9th Cir. 2007). The cases upon which CNS
relies declined to abstain under Younger either because the federal lawsuit did not
interfere with ongoing state proceedings or because the federal plaintiffs had not
been permitted to intervene or participate in those proceedings. See, e.g., RiveraPuig, 983 F.2d at 319 (“The Younger abstention doctrine does not permit
abstention in the present case because the district court’s ruling did not enjoin or
interfere with any state proceeding.”); Sable Commc’ns, 890 F.2d at 190 (declining
to abstain under Younger because a decision could not prejudice the conduct of the
state proceeding).
Critically, however, the prudential limitations imposed upon Younger
abstention simply do not apply in O’Shea equitable abstention cases. Indeed,

54

O’Shea’s significance as a precedent stems from its holding that the equitable
abstention doctrine is not limited to federal lawsuits that interfere with ongoing
state proceedings, as was the case in Younger. The Court went beyond Younger to
hold that, “an injunction aimed at controlling or preventing the occurrence of
specific events that might take place in the course of future state criminal trials”
amounted to “nothing less than an ongoing federal audit of state criminal
proceedings which would indirectly accomplish the kind of interference that
Younger . . . sought to prevent.” 414 U.S. at 500 (emphasis added).
In short, CNS misstates the rule to avoid its consequences. For purposes of
O’Shea, the issue is not whether a federal lawsuit interferes with “the merits of any
decision of any state court judge,” as CNS suggests. Instead, the issue is whether
the remedy sought in a federal lawsuit amounts to “interference in such sensitive
state activities as administration of the judicial system” and “would inevitably set
up the precise basis for future intervention condemned in O’Shea.” E.T., 682 F.3d
at 1124, 1125 (internal quotation marks, citations, and emphasis omitted). As
explained above, CNS’s proposed injunction suffers from both vices.
2.

Gerstein v. Pugh Does Not Apply To This Case.

Citing Gerstein v. Pugh, 420 U.S. 103, 108 n.9 (1975), CNS also argues that
abstention is unnecessary where federal courts are asked to audit issues ancillary to
the merits of the state court action to which it was not a party. (ECF No. 7 at 44-

55

45.) CNS’s reliance on Gerstein is misplaced. The Supreme Court declined to
abstain in Gerstein because the federal plaintiffs did not have an adequate remedy
in state court. Id. at 108 n.9. It is for this reason that the Supreme Court has
repeatedly explained that Gerstein’s holding is limited to cases in which the federal
plaintiff has no opportunity to press its claims in state court. Middlesex Cnty.
Ethics Comm., 457 U.S. at 436 n.14; Moore v. Sims, 442 U.S. 415, 431-32 (1979);
Juidice v. Vail, 430 U.S. 327, 336-37 (1977); see also Wallace v. Kern, 520 F.2d
400, 406-07 (2d Cir. 1975) (“[B]oth the majority and concurring opinions
emphasized the unavailability of state remedies.”); Pompey, 95 F.3d at 1550-51
(“Gerstein is distinguishable from this case. The permissibility of federal equitable
relief in Gerstein was based upon the absence of an adequate state forum for
raising the issue.”).13
The same cannot be said here, because CNS can institute proceedings in
state court to vindicate its claimed access rights. In particular, CNS has the right to
file a petition for writ of mandate pursuant to California Code of Civil Procedure
section 1085 to compel VSC to comply with the purported obligation to guarantee
13

Plaintiffs’ cited authorities prove the point, as the plaintiffs in those cases
could not obtain a ruling in state court. See FOCUS v. Allegheny Cnty. Court of
Common Pleas, 75 F.3d 834, 843 (3d Cir. 1996); Habich v. City of Dearborn, 331
F.3d 524, 530 (6th Cir. 2003); Pellegrino, 380 F.3d at 101; In re Application &
Affidavit for a Search Warrant, 923 F.2d 324, 328 (4th Cir. 1991); Fort Wayne
Journal-Gazette v. Baker, 788 F. Supp. 379, 383 (N.D. Ind. 1992); Conn.
Magazine v. Moraghan, 676 F. Supp. 38, 41 (D. Conn. 1987).
56

“same-day access” to newly-filed unlimited civil complaints. See generally De
Garmo v. Superior Court, 1 Cal.2d 83, 86 (1934); TrafficSchoolOnline, Inc. v.
Superior Court, 89 Cal.App.4th 222, 235-37 (2001).
Equitable Abstention Has Been Invoked In First
Amendment Cases.
CNS and its amicus also suggest that federal courts have declined to apply
3.

O’Shea abstention in First Amendment access cases and that application here
would have dire consequences for future cases. (ECF No. 7 at 47-48; ECF No. 15
at 5-9.) CNS’s and its amicus’s analysis of prior case law, and their premonition of
future ramifications, both are off the mark.
First, the fundamental premise of the argument is incorrect. Federal courts
have invoked in both Younger and O’Shea abstention in First Amendment cases.
E.g., Younger, 401 U.S. at 53; Middlesex Cnty. Ethics Comm., 457 U.S. at 429;
Huffman v. Pursue, Ltd., 420 U.S. 592, 599 (1975); Samuels v. Mackell, 401 U.S.
66, 67 (1971); McKusick, 96 F.3d at 480-90; Hoover, 47 F.3d at 850-51; NewsJournal Corp. v. Foxman, 939 F.2d 1499, 1516 (11th Cir. 1991).
Second, CNS and its amicus cannot credibly argue that abstention results in
an outright denial of a federal forum. Supreme Court review of federal questions is
always available. See Henkel v. Bradshaw, 483 F.2d 1386, 1390 (9th Cir. 1973)
(“Henkel’s claim … can be fully vindicated in one state proceeding, with the right

57

of appeal through the state courts and with the right to petition the United States
Supreme Court for review of any federal question.”).
Third, and more fundamentally, the decision in this case is not governed by
Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989), or Delaware
Coalition for Open Government, Inc. v. The Delaware Court of Chancery, No. 1101015 (D. Del. filed Oct. 25, 2011), as amicus suggests. A federal court ruling
invalidating blanket state-court sealing orders is nowhere near as intrusive as an
injunction that first mandates disclosure of new complaints under unrealistic
deadlines, and then requires state courts to convene special proceedings whenever
a newly-filed complaint makes it to the Media Bin one day late. What is more, an
order that merely precludes a state court from imposing a blanket sealing policy
would not effectively dictate state or local budget priorities in any way, a
fundamental reason why O’Shea abstention is appropriate here.
Federal law presumes that state courts can and will safeguard federal
constitutional rights. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 15 (1987); Hirsch v.
Justices of Supreme Court of Cal., 67 F.3d 708, 713 (9th Cir. 1995). And while
federal courts might “appreciate the vote of confidence,” the plaintiff’s desire to
litigate in federal court is not, of itself, a sufficient reason to avoid abstention.
Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 619 (9th Cir. 2003). The district
court’s equitable abstention order should be affirmed accordingly.

58

CONCLUSION
For the foregoing reasons, the district court’s order granting VSC’s motion
to dismiss and abstain should be affirmed.14
Dated: July 30, 2012.

Respectfully submitted,
Jones Day

By: s/ Robert A. Naeve
Robert A. Naeve
Erica L. Reilley
Nathaniel P. Garrett
Attorneys for Defendant-Appellee
MICHAEL PLANET

14

VSC concurs with CNS’s observation that if this Court were to
reverse the district court’s abstention decisions, the proper remedy is to remand to
the district court for a decision on the merits. (ECF No. 7 at 48.) To be clear, for
the reasons outlined in Part I(A) above, VSC does not concede that the First
Amendment creates a right of “same-day access” to newly-filed unlimited civil
complaints.
59

STATEMENT OF RELATED CASES
Defendant-Appellee is aware of no related cases pending before the Court.

60

CERTIFICATE OF COMPLIANCE PURSUANT TO
FED. R. APP. 32(a)(7)(C) AND CIRCUIT RULE 32-1
Pursuant to Fed. R. App. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I certify
that the attached brief is proportionately spaced, has a typeface of 14 points and
contains 13,967 words.
Dated: July 30, 2012.

By: s/ Robert A. Naeve
Robert A. Naeve
Attorneys for Defendant-Appellee
MICHAEL PLANET

61

ADDENDUM

ADDENDUM TABLE OF CONTENTS
Page
Pursuant to Ninth Circuit Rule 28-2.7, VSC provides verbatim text of
pertinent state-law constitutional, statutory and regulatory authorities cited in this
brief.

Cal. Const. art. I, § 3 ....................................................................................... ADD 1 
Cal. Civ. Proc. Code § 1085 ............................................................................ ADD 3 
Cal. Gov’t Code § 68150 ................................................................................. ADD 4 
Cal. R. Ct. 2.500 ............................................................................................... ADD 7 
Cal. R. Ct. 2.503 ............................................................................................... ADD 8

Cal. Const. Art. I, § 3. Right to instruct representatives, petition and
assembly; right of access to government information
(a) The people have the right to instruct their representatives, petition
government for redress of grievances, and assemble freely to consult for the
common good.
(b)(1)
The people have the right of access to information concerning the
conduct of the people’s business, and, therefore, the meetings of public bodies and
the writings of public officials and agencies shall be open to public scrutiny.
(2) A statute, court rule, or other authority, including those in effect on
the effective date of this subdivision, shall be broadly construed if it furthers
the people’s right of access, and narrowly construed if it limits the right of
access. A statute, court rule, or other authority adopted after the effective
date of this subdivision that limits the right of access shall be adopted with
findings demonstrating the interest protected by the limitation and the need
for protecting that interest.
(3) Nothing in this subdivision supersedes or modifies the right of privacy
guaranteed by Section 1 or affects the construction of any statute, court rule,
or other authority to the extent that it protects that right to privacy, including
any statutory procedures governing discovery or disclosure of information
concerning the official performance or professional qualifications of a peace
officer.
(4) Nothing in this subdivision supersedes or modifies any provision of
this Constitution, including the guarantees that a person may not be deprived
of life, liberty, or property without due process of law, or denied equal
protection of the laws, as provided in Section 7.
(5) This subdivision does not repeal or nullify, expressly or by
implication, any constitutional or statutory exception to the right of access to
public records or meetings of public bodies that is in effect on the effective
date of this subdivision, including, but not limited to, any statute protecting
the confidentiality of law enforcement and prosecution records.
(6) Nothing in this subdivision repeals, nullifies, supersedes, or modifies
protections for the confidentiality of proceedings and records of the
Legislature, the Members of the Legislature, and its employees, committees,
ADD 1

and caucuses provided by Section 7 of Article IV, state law, or legislative
rules adopted in furtherance of those provisions; nor does it affect the scope
of permitted discovery in judicial or administrative proceedings regarding
deliberations of the Legislature, the Members of the Legislature, and its
employees, committees, and caucuses.

ADD 2

Cal. Civ. Proc. Code § 1085. Writ of mandate
(a) A writ of mandate may be issued by any court to any inferior tribunal,
corporation, board, or person, to compel the performance of an act which the law
specially enjoins, as a duty resulting from an office, trust, or station, or to compel
the admission of a party to the use and enjoyment of a right or office to which the
party is entitled, and from which the party is unlawfully precluded by that inferior
tribunal, corporation, board, or person.
(b) The appellate division of the superior court may grant a writ of mandate
directed to the superior court in a limited civil case or in a misdemeanor or
infraction case. Where the appellate division grants a writ of mandate directed to
the superior court, the superior court is an inferior tribunal for purposes of this
chapter.

ADD 3

Cal. Gov’t Code § 68150. Creation, maintenance and preservation of trial
court records; application; Judicial Council to adopt rules; indexing of
records; certified copies; disposal, storage and review
(a) Trial court records may be created, maintained, and preserved in any form or
forms of communication or representation, including paper, optical, electronic,
magnetic, micrographic, or photographic media or other technology, if the form or
forms of representation or communication satisfy the rules adopted by the Judicial
Council pursuant to subdivision (c), once those rules have been adopted. Until
those rules are adopted, the court may continue to create, maintain, and preserve
records according to the minimum standards or guidelines for the preservation and
reproduction of the medium adopted by the American National Standards Institute
or the Association for Information and Image Management.
(b) This section shall not apply to court reporters’ transcripts or to specifications
for electronic recordings made as the official record of oral proceedings. These
records shall be governed by the California Rules of Court.
(c) The Judicial Council shall adopt rules to establish the standards or guidelines
for the creation, maintenance, reproduction, or preservation of court records,
including records that must be preserved permanently. The standards or guidelines
shall reflect industry standards for each medium used, if those standards exist. The
standards or guidelines shall ensure that court records are created and maintained
in a manner that ensures accuracy and preserves the integrity of the records
throughout their maintenance. They shall also ensure that the records are stored
and preserved in a manner that will protect them against loss and ensure
preservation for the required period of time. Standards and guidelines for the
electronic creation, maintenance, and preservation of court records shall ensure
that the public can access and reproduce records with at least the same amount of
convenience as paper records previously provided.
(d) No additions, deletions, or changes shall be made to the content of court
records, except as authorized by statute or the California Rules of Court.
(e)

Court records shall be indexed for convenient access.

(f)
A copy of a court record created, maintained, preserved, or reproduced
according to subdivisions (a) and (c) shall be deemed an original court record and
may be certified as a correct copy of the original record.
ADD 4

(g) Any notice, order, judgment, decree, decision, ruling, opinion,
memorandum, warrant, certificate of service, or similar document issued by a trial
court or by a judicial officer of a trial court may be signed, subscribed, or verified
using a computer or other technology in accordance with procedures, standards,
and guidelines established by the Judicial Council pursuant to this section.
Notwithstanding any other provision of law, all notices, orders, judgments,
decrees, decisions, rulings, opinions, memoranda, warrants, certificates of service,
or similar documents that are signed, subscribed, or verified by computer or other
technological means pursuant to this subdivision shall have the same validity, and
the same legal force and effect, as paper documents signed, subscribed, or verified
by a trial court or a judicial officer of the court.
(h) A court record created, maintained, preserved, or reproduced in accordance
with subdivisions (a) and (c) shall be stored in a manner and in a place that
reasonably ensures its preservation against loss, theft, defacement, or destruction
for the prescribed retention period under Section 68152.
(i)
A court record that was created, maintained, preserved, or reproduced in
accordance with subdivisions (a) and (c) may be disposed of in accordance with
the procedure under Section 68153, unless it is either of the following:
(1) A comprehensive historical and sample superior court record
preserved for research under the California Rules of Court.
(2)

A court record that is required to be preserved permanently.

(j)
Instructions for access to data stored on a medium other than paper shall be
documented.
(k) Each court shall conduct a periodic review of the media in which the court
records are stored to ensure that the storage medium is not obsolete and that
current technology is capable of accessing and reproducing the records. The court
shall reproduce records before the expiration of their estimated lifespan for the
medium in which they are stored according to the standards or guidelines
established by the Judicial Council.
(l)
Unless access is otherwise restricted by law, court records created,
maintained, preserved, or reproduced under subdivisions (a) and (c) shall be made
reasonably accessible to all members of the public for viewing and duplication as
the paper records would have been accessible. Unless access is otherwise
ADD 5

restricted by law, court records maintained in electronic form shall be viewable at
the court, regardless of whether they are also accessible remotely. Reasonable
provision shall be made for duplicating the records at cost. Cost shall consist of all
costs associated with duplicating the records as determined by the court.

ADD 6

Cal. R. Ct. 2.500. Statement of purpose
(a)

Intent

The rules in this chapter are intended to provide the public with reasonable access
to trial court records that are maintained in electronic form, while protecting
privacy interests.
(b)

Benefits of electronic access

Improved technologies provide courts with many alternatives to the historical
paper-based record receipt and retention process, including the creation and use of
court records maintained in electronic form. Providing public access to trial court
records that are maintained in electronic form may save the courts and the public
time, money, and effort and encourage courts to be more efficient in their
operations. Improved access to trial court records may also foster in the public a
more comprehensive understanding of the trial court system.
(c)

No creation of rights

The rules in this chapter are not intended to give the public a right of access to any
record that they are not otherwise entitled to access. The rules do not create any
right of access to records that are sealed by court order or confidential as a matter
of law.

ADD 7

Cal. R. Ct. 2.503. Public access
(a)

General right of access

All electronic records must be made reasonably available to the public in some
form, whether in electronic or in paper form, except those that are sealed by court
order or made confidential by law.
(b)

Electronic access required to extent feasible

A court that maintains the following records in electronic form must provide
electronic access to them, both remotely and at the courthouse, to the extent it is
feasible to do so:
(1) Registers of actions (as defined in Gov. Code, § 69845), calendars,
and indexes in all cases; and
(2)
(c)

All records in civil cases, except those listed in (c)(1)-(9).

Courthouse electronic access only

A court that maintains the following records in electronic form must provide
electronic access to them at the courthouse, to the extent it is feasible to do so, but
may provide remote electronic access only to the records governed by (b):
(1) Records in a proceeding under the Family Code, including
proceedings for dissolution, legal separation, and nullity of marriage; child
and spousal support proceedings; child custody proceedings; and domestic
violence prevention proceedings;
(2)

Records in a juvenile court proceeding;

(3)

Records in a guardianship or conservatorship proceeding;

(4)

Records in a mental health proceeding;

(5)

Records in a criminal proceeding;

(6) Records in a civil harassment proceeding under Code of Civil
Procedure section 527.6;
ADD 8

(7) Records in a workplace violence prevention proceeding under Code of
Civil Procedure section 527.8;
(8) Records in a private postsecondary school violence prevention
proceeding under Code of Civil Procedure section 527.85;
(9) Records in an elder or dependent adult abuse prevention proceeding
under Welfare and Institutions Code section 15657.03; and
(10) Records in proceedings to compromise the claims of a minor or a
person with a disability.
(d)

“Feasible” defined

As used in this rule, the requirement that a court provide electronic access to its
electronic records “to the extent it is feasible to do so” means that a court is
required to provide electronic access to the extent it determines it has the resources
and technical capacity to do so.
(e)

Remote electronic access allowed in extraordinary criminal cases

Notwithstanding (c)(5), the presiding judge of the court, or a judge assigned by the
presiding judge, may exercise discretion, subject to (e)(1), to permit electronic
access by the public to all or a portion of the public court records in an individual
criminal case if (1) the number of requests for access to documents in the case is
extraordinarily high and (2) responding to those requests would significantly
burden the operations of the court. An individualized determination must be made
in each case in which such remote electronic access is provided.
(1) In exercising discretion under (e), the judge should consider the
relevant factors, such as:
(A) The privacy interests of parties, victims, witnesses, and court
personnel, and the ability of the court to redact sensitive personal
information;
(B) The benefits to and burdens on the parties in allowing remote
electronic access, including possible impacts on jury selection; and

ADD 9

(C) The burdens on the court in responding to an extraordinarily
high number of requests for access to documents.
(2) The court should, to the extent feasible, redact the following
information from records to which it allows remote access under (e): driver
license numbers; dates of birth; social security numbers; Criminal
Identification and Information and National Crime Information numbers;
addresses and phone numbers of parties, victims, witnesses, and court
personnel; medical or psychiatric information; financial information;
account numbers; and other personal identifying information. The court
may order any party who files a document containing such information to
provide the court with both an original unredacted version of the document
for filing in the court file and a redacted version of the document for remote
electronic access. No juror names or other juror identifying information
may be provided by remote electronic access. This subdivision does not
apply to any document in the original court file; it applies only to documents
that are available by remote electronic access.
(3) Five days’ notice must be provided to the parties and the public before
the court makes a determination to provide remote electronic access under
this rule. Notice to the public may be accomplished by posting notice on the
court’s Web site. Any person may file comments with the court for
consideration, but no hearing is required.
(4) The court’s order permitting remote electronic access must specify
which court records will be available by remote electronic access and what
categories of information are to be redacted. The court is not required to
make findings of fact. The court’s order must be posted on the court’s Web
site and a copy sent to the Judicial Council.
(f)

Access only on a case-by-case basis

The court may only grant electronic access to an electronic record when the record
is identified by the number of the case, the caption of the case, or the name of a
party, and only on a case-by-case basis. This case-by-case limitation does not
apply to the court’s electronic records of a calendar, register of actions, or index.

ADD 10

(g)

Bulk distribution

The court may provide bulk distribution of only its electronic records of a calendar,
register of actions, and index. “Bulk distribution” means distribution of all, or a
significant subset, of the court’s electronic records.
(h)

Records that become inaccessible

If an electronic record to which the court has provided electronic access is made
inaccessible to the public by court order or by operation of law, the court is not
required to take action with respect to any copy of the record that was made by the
public before the record became inaccessible.
(i)

Off-site access

Courts should encourage availability of electronic access to court records at public
off-site locations.

ADD 11

9th Circuit Case Number(s) 11-57187
NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

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CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
.
Jul 30, 2012
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
Signature (use "s/" format)

s/ Nathaniel P. Garrett

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CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
.
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:

Signature (use "s/" format)