Courthouse News Service v. Michael Planet

Filing 25

Submitted (ECF) Reply brief for review. Submitted by Appellant Courthouse News Service. Date of service: 09/12/2012. [8320937] (REM)

U.S. Court of Appeals Docket No. 11-57187
___________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________________________________
COURTHOUSE NEWS SERVICE,
Plaintiff/Appellant,
vs.
MICHAEL PLANET, in his official capacity as Court Executive Officer/Clerk of
the Ventura County Superior Court,
Defendant/Appellee.
___________________________________________________________
On Appeal from a Decision of the United States District Court
for the Central District of California
Case No. CV11-08083 R
The Honorable Manuel Real
___________________________________________________________
REPLY BRIEF OF APPELLANT
COURTHOUSE NEWS SERVICE
___________________________________________________________
Roger Myers, Esq.
Rachel Matteo-Boehm, Esq.
David Greene, Esq.
Leila Knox, Esq.
BRYAN CAVE LLP
560 Mission Street, 25th Floor
San Francisco, CA 94105-2994
Tel: [phone]
[e-mail]
Attorneys for Plaintiff-Appellant
COURTHOUSE NEWS SERVICE

TABLE OF CONTENTS
INTRODUCTION ............................................................................................ 1
I.

THE ANSWERING BRIEF CANNOT BAR REVERSAL BY
MISSTATING THE STANDARD OF REVIEW, RELIEF
SOUGHT OR RECORD BELOW ........................................................ 2
A.
B.

Abstention Dismissals Are For Failure To State A Claim,
And The Ventura Clerk’s Evidence Must Be Disregarded.......... 3

C.
II.

O’Shea Is A Form Of Younger Abstention, Which Is
Reviewed De Novo ...................................................................... 2

The Relief Requested Is Not As The Answering Brief
Portrays......................................................................................... 5

BY PORTRAYING “CLEAR” LAW AS UNSETTLED, THE
ANSWERING BRIEF CONFIRMS PULLMAN ABSTENTION
WAS IMPROPER .................................................................................. 8
A.

The Answering Brief Cannot Meet The First Pullman
Factor By Asserting This Is Not A Free Expression Case
And Abstention Is “Frequently” Allowed In Such Cases,
As Clear Law Is To The Contrary................................................ 8
1.

2.

A Limited Exception To The Rule Against Abstention
In First Amendment Cases Is Inapplicable Here ............... 11

3.
B.

Court Access Is Protected By The First Amendment
Right Of Free Expression, And This Right Applies
To Civil Complaints........................................................... 9

First Amendment Cases Raise Federal Concerns
That Do Not Meet The First Pullman Factor..................... 11

The Second And Third Pullman Factors Cannot Be Met By
Overlooking “Clear” Law That State Rules On Access To
Court Records Are Co-Extensive With The First Amendment
Right Of Access............................................................................ 13

i

1.
2.

III.

It Is “Clear” California Recognizes A First Amendment
Right Of Access To Substantive Civil Court Records....... 14
Under NBC Subsidiary, First Amendment Precedent
Controls Construction of California Rules On Access
To Court Records ............................................................... 15

THE ANSWERING BRIEF ALSO CONFIRMS ABSTENTION
WAS NOT APPROPRIATE BY SEEKING TO UNTIE IT FROM
O’SHEA’S LIMITS ................................................................................ 17
A.

“Equitable Abstention” Is Not A Defined Doctrine And
Provides No Basis Outside Of O’Shea For Affirming
Abstention In This Case ............................................................... 18

B.

The Answering Brief Cannot Rely On Younger’s
Equitable Principles Without Satisfying The Limitations
That Accompany Them ................................................................ 22

C.

Because The Relief Sought By Courthouse News Is Ancillary
To State Court Proceedings, This Case Is Governed By
Gerstein, Not O’Shea ................................................................... 23

D.

The Answering Brief’s Argument For O’Shea Abstention
Rests On Misstatements Of The Relief Sought And The
Related Factual Record ................................................................ 25

CONCLUSION................................................................................................. 26

ii

TABLE OF AUTHORITIES
FEDERAL CASES
Allegheny Airlines v. Pennsylvania PUC,
465 F.2d 237 (3d Cir. 1972) .....................................................................19
Almodovar v. Reiner,
832 F.2d 1138 (9th Cir. 1987)..................................................................12
AmerisourceBergen Corp. v. Roden,
495 F.3d 1143 (9th Cir. 2007)............................................................18, 19
Babbitt v. UFW National Union,
442 U.S. 289 (1979) ...........................................................................11, 14
Baggett v. Bullitt,
377 U.S. 360 (1964) .................................................................................13
Ballard v. Wilson,
856 F.2d 1568 (5th Cir. 1988)..................................................................22
Benavidez v. Eu,
34 F.3d 825 (9th Cir. 1994) ........................................................................5
Bice v. Louisiana Public Defender Board,
677 F.3d 712 (5th Cir. 2012) ....................................................................23
Bickham v. Lashof,
620 F.2d 1238 (7th Cir. 1980)..................................................................23
Boyes v. Shell Oil Products,
199 F.3d 1260 (11th Cir. 2000)..................................................................3
Campbell v. McGruder,
580 F.2d 521 (D.C. Cir. 1978) .................................................................21
Columbia Basin Apartment Association v. Pasco,
268 F.3d 791 (9th Cir. 2001) ......................................................................5

iii

Costen v. Pauline’s Sportswear,
391 F.2d 81 (9th Cir. 1968) ........................................................................3
Courthouse News Service v. Jackson,
2009 U.S. Dist. LEXIS 62300 (S.D. Tex. 2009)........................5, 6, 10, 21
Courthouse News Service v. Jackson,
2010 U.S. Dist. LEXIS 74571 (S.D. Tex. 2010)..................2, 6, 22, 25, 26
Dombrowski v. Pfister,
380 U.S. 479 (1965) .............................................................................9, 11
EEOC v. Erection Co.,
900 F.2d 168 (9th Cir. 1990) ....................................................................10
E.T. v. Cantil-Sakauye,
682 F.3d 1121 (9th Cir. 2012)......................................................3, 4, 7, 23
Fernandez v. Trias Monge,
586 F.2d 848 (1st Cir. 1978) ..............................................................21, 24
Fireman’s Fund Insurance v. Lodi,
302 F.3d 928 (9th Cir. 2002) ......................................................................1
Fresh International Corp. v. Agriculture Labor Relations Board,
805 F.2d 1353 (9th Cir. 1986)................................................................2, 3
FOCUS v. Allegheny County Court of Common Pleas,
75 F.3d 834 (3d Cir. 1996) .......................................................................24
Gerstein v. Pugh,
420 U.S. 103 (1975) .....................................................................18, 23, 24
Gilbertson v. Albright,
381 F.3d 965 (9th Cir. 2004) ......................................................................3
Green v. Tucson,
255 F.3d 1086 (9th Cir. 2001)......................................3, 18, 19, 20, 24, 25

iv

Grode v. Mutual Fire, Marine & Inland Insurance,
8 F.3d 953 (3d Cir. 1993) .........................................................................19
Grove Fresh Distributors v. Everfresh Juice Co.,
24 F.3d 893 (7th Cir. 1994) ......................................................................13
Habich v. Dearborn,
331 F.3d 524 (6th Cir. 2003) ....................................................................24
Harrison v. NAACP,
360 U.S. 167 (1959) .................................................................................11
Heritage Farms v. Solebury,
671 F.2d 743 (3d Cir. 1982) .......................................................................5
Hobbs v. Thompson,
448 F.2d 456 (5th Cir. 1971) ....................................................................17
Houchins v. KQED, Inc.,
438 U.S. 1 (1978) .......................................................................................9
Houston v. Hill,
482 U.S. 451 (1987) .................................................................................11
In re Eastman Kodak,
2010 WL. 2490982 (S.D.N.Y. 2010) .......................................................10
In re Reporters Committee for Freedom of the Press,
773 F.2d 1325 (D.C. Cir. 1985) ...............................................................14
Insurance Federation v. Supreme Court,
669 F.2d 112 (3d Cir. 1982) .......................................................................5
Joseph A. v. Ingram,
275 F.3d 1253 (10th Cir. 2002)..................................................................3
Katie A. v. Los Angeles County,
481 F.3d 1150 (9th Cir. 2007)..................................................................21

v

Kaufman v. Kaye,
466 F.3d 83 (2d Cir. 2006) ...................................................................3, 22
Kelley v. Johnson,
425 U.S. 238 (1976) .................................................................................20
Knievel v. ESPN,
393 F.3d 1068 (9th Cir. 2005)....................................................................4
L.A. County Bar Association v. Eu,
979 F.2d 697 (9th Cir. 1992) ....................................................................23
L.A. Police Department v. United Reporting Publishing Corp.,
528 U.S. 32 (1999) ...................................................................................13
Laird v. Tatum,
408 U.S. 1 (1972) .....................................................................................12
Leigh v. Salazar,
677 F.3d 892 (9th Cir. 2012) ....................................................................10
Leucadia v. Applied Extrusion Technologies,
998 F.2d 157 (3d Cir. 1993) .....................................................................10
Lewis v. Casey,
518 U.S. 343 (1996) .................................................................................20
Los Angeles v. Lyons,
461 U.S. 95 (1983) ...................................................................................20
Manney v. Cabell,
654 F.2d 1280 (9th Cir. 1980)..................................................................17
Martin v. Stewart,
499 F.3d 360 (4th Cir. 2007) ....................................................................19
Missouri v. Jenkins,
515 U.S. 70 (1995) ...................................................................................20

vi

N.Y. Civil Liberties Union v. N.Y. City Transit Authority,
652 F.3d 247 (2d Cir. 2011) .....................................................................10
Nebraska Press Association v. Stuart,
427 U.S. 539 (1976) .................................................................................13
Nebraska Press Association v. Stuart,
423 U.S. 1327 (Blackmun, Circuit Justice, 1975)....................................13
New Orleans Public Service v. New Orleans,
491 U.S. 350 (1989) .................................................................................19
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) .................................................................................13
News Journal Corp. v. Foxman,
939 F.2d 1499 (11th Cir. 1991)................................................................24
O’Shea v. Littleton,
414 U.S. 488 (1974) ......................................................................... passim
Parker v. Turner,
626 F.2d 1 (6th Cir. 1980) ........................................................5, 20, 22, 23
Pearl Investment Co. v. San Francisco,
774 F.2d 1460 (9th Cir. 1985)..................................................................14
Pompey v. Broward County,
95 F.3d 1543 (11th Cir. 1996)........................................................2, 22, 23
Porter v. Jones,
319 F.3d 483 (9th Cir. 2003) ................................................................8, 12
Pue v. Sillas,
632 F.2d 74 (9th Cir. 1980) ................................................................13, 14
Pulliam v. Allen,
466 U.S. 522 (1984) ...................................................................................2

vii

Railroad Commission v. Pullman,
312 U.S. 496 (1941) ......................................................................... passim
Rhoades v. Avon Products,
504 F.3d 1151 (9th Cir. 2007)................................................................4, 7
Richmond Newspapers v. Virginia,
448 U.S. 555 (1980) .............................................................................9, 10
Rio Grande Community Health Center v. Rullan,
397 F.3d 56 (1st Cir. 2005) ......................................................................19
Ripplinger v. Collins,
868 F.2d 1043 (9th Cir. 1989)..................................................................12
Rizzo v. Goode,
423 U.S. 362 (1976) ...........................................................................20, 21
Safe Air for Everyone v. Meyer,
373 F.3d 1035 (9th Cir. 2004)................................................................4, 7
Seattle Times Co v. Rhinehart,
467 U.S. 20 (1984) ...................................................................................14
Stefanelli v. Minard,
342 U.S. 117 (1951) .................................................................................20
Sullo & Bobbitt, PLLC v. Abbott,
2012 U.S. Dist. LEXIS 95223 (N.D. Tex. 2012) .....................................13
Tarter v. Hury,
646 F.2d 1010 (5th Cir. 1981)..................................................................26
Texas Association of Bus. v. Earle,
388 F.3d 515 (5th Cir. 2004) ......................................................................3
U.S. ex rel. Dahlman v. Emergency Physicians,
2004 U.S. Dist. LEXIS 31304 (D. Minn. 2004).......................................10

viii

Vassiliades v. Israely,
714 F. Supp. 604 (D. Conn. 1989) ...........................................................10
Wallace v. Kern,
520 F.2d 400 (2d Cir. 1975) .....................................................................21
Wolfson v. Brammer,
616 F.3d 1045 (9th Cir. 2010)................................................1, 8, 9, 11, 12
Younger v. Harris,
401 U.S. 37 (1971) ........................................................................... passim

STATE CASES
H.B. Fuller Co. v. Does,
151 Cal. App. 4th 879 (2007)...................................................................16
In re Marriage of Burkle,
135 Cal. App. 4th 1045 (2006)...........................................................15, 16
Mercury Interactive Corp. v. Klein,
158 Cal. App. 4th 60 (2007).........................................................14, 16, 17
NBC Subsidiary (KNBC-TV) v. Superior Court,
20 Cal. 4th 1178 (1999)....................................................10, 14, 15, 16, 17
Sutter’s Place Inc. v. Superior Court,
161 Cal. App. 4th 1370 (2008)................................................................16

FEDERAL RULES
Federal Rule of Civil Procedure 12(b)(1)............................................1, 4, 5, 7
Federal Rule of Civil Procedure 12(b)(6)................................................1, 5, 7

ix

STATE CONSTITUTIONAL PROVISIONS, STATUTES AND RULES
Cal. Const., Art. I, § 3(b) ...............................................................................16
Cal. R. Ct. 2.500 ............................................................................................15
Cal. R. Ct. 2.550 ..................................................................................6, 15, 16
Cal. R. Ct. 2.551 ........................................................................................6, 16
Cal. R. Ct. 10.850-10.856..............................................................................15
Code of Civil Procedure § 124 ......................................................................16
Family Code § 2024.6 ...................................................................................16
Government Code § 68150............................................................................15

OTHER
5B Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 1350 (3d ed. 2012) ................................5

x

INTRODUCTION
In an appeal from an order abstaining from addressing the merits of the First
Amendment issue, it is telling that Ventura Clerk Michael Planet devotes much of
his Answering Brief (“AB”) to misconstruing the merits of the First Amendment
issue, the record and the relief Appellant Courthouse News seeks. In doing so, the
Answering Brief confirms that under a proper reading of the law, record and relief
sought, abstention under Railroad Comm’n v. Pullman, 312 U.S. 496 (1941) was
“‘inappropriate [because] First Amendment rights are at stake,’” Wolfson v.
Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010) (citation omitted), and there is no
uncertain question of state law, while abstention under O’Shea v. Littleton, 414
U.S. 488 (1974), was also inappropriate because the relief sought would cause no
“disruption” of any court proceedings. Id. at 501.
For these reasons, the Answering Brief seeks virtually unlimited discretion
for a district court to abstain, unchecked by the confines of the doctrines it invokes
or the limitations on consideration and construction of evidence on a motion under
Federal Rule of Civil Procedure 12(b)(6) or, for that matter, 12(b)(1). But this ploy
must fail. “Because there is no discretion to abstain in cases that do not meet the
requirements of the abstention doctrine being invoked” – or where appropriate
procedural rules are not followed – “the district court erred in abstaining.”
Fireman’s Fund Ins. v. Lodi, 302 F.3d 928, 939 (9th Cir. 2002).

1

I.
THE ANSWERING BRIEF CANNOT BAR REVERSAL BY MISSTATING
THE STANDARD OF REVIEW, RELIEF SOUGHT OR RECORD BELOW
In an attempt to save the ruling below, the Answering Brief points to the
same evidence on which the district court erroneously relied, which was not filed
in support of abstention and cannot be used to dispute the allegations in the
complaint. Moreover, its mischaracterizations of the relief Courthouse News seeks
here – and purported burdens it would impose – cannot be squared with the
complaint itself, the language of the proposed injunction, or the unobtrusive relief
Courthouse News obtained in the Jackson case (which the Answering Brief all but
ignores). At bottom, the complaint seeks nothing more than what is already
provided by a host of state and federal courts: access to a handful of new
complaints at the end of the day they are filed. Under any standard of review, the
ruling below must be reversed.
A.

O’Shea Is A Form Of Younger Abstention, Which Is Reviewed De Novo
The Answering Brief cites no O’Shea cases to support its claim the standard

of review is abuse of discretion. AB 12-13. That is because “the abuse of
discretion standard is inappropriate” to “application of the Younger abstention
doctrine,” Fresh Int’l Corp. v. Agric. Labor Rel. Bd., 805 F.2d 1353, 1356 n.2 (9th
Cir. 1986), and O’Shea “applied … that abstention doctrine.” Pompey v. Broward
County, 95 F.3d 1543, 1547 (11th Cir. 1996); accord, e.g., Pulliam v. Allen, 466

2

U.S. 522, 539 n.20 (1984) (O’Shea decided on “Younger v. Harris grounds”).
It follows that this Circuit, which reviews de novo “[w]hether Younger
abstention applies,” Fresh Int’l, 805 F.2d at 1356, should review de novo whether
the O’Shea form of Younger applies. Joseph A. v. Ingram, 275 F.3d 1253, 1266,
1271 (10th Cir. 2002) (“review[ing] de novo … application of the Younger
abstention doctrine” based on O’Shea).1
B.

Abstention Dismissals Are For Failure To State A Claim, And The
Ventura Clerk’s Evidence Must Be Disregarded
Appeals from abstention-based dismissals are “from a dismissal for failure

to state a claim.” Kaufman v. Kaye, 466 F.3d 83, 84 (2d Cir. 2006); accord, e.g.,
E.T. v. Cantil-Sakauye, 682 F.3d 1121, 1122 n.1 (9th Cir. 2012).
It was thus “reversible error” for the court below to “consider matters
outside the complaint” in dismissing. Costen v. Pauline’s Sportswear, 391 F.2d
81, 84-85 (9th Cir. 1968) (quotation omitted). That is true under any standard of
review. “An abuse of discretion occurs if the judge fails to apply the proper legal
standard or to follow proper procedures in making the determination.” Boyes v.

1

The circuits “that apply an abuse of discretion standard have done so with little
explanation.” Green v. Tucson, 255 F.3d 1086, 1093 (9th Cir. 2001) (en banc),
overruled on other grounds, Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004)
(en banc). Even in those circuits, a “‘court necessarily abuses its discretion when it
abstains outside the doctrine’s strictures.’” Texas Ass’n of Bus. v. Earle, 388 F.3d
515, 518 (5th Cir. 2004) (citation omitted).
3

Shell Oil Prods., 199 F.3d 1260, 1265 (11th Cir. 2000) (reversing abstention).2
This Court also must disregard the declarations in the Supplemental
Excerpts of Record (“SER”) “disputing the truth of the allegations” in Courthouse
News’ complaint. AB 12 n.1. It must “take the factual allegations in [Courthouse
News’] complaint as true,” E.T., 682 F.3d at 1122 n.1, “disregard[ing] facts that
are not alleged on the face of the complaint or contained in documents attached to
the complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
Rule 12(b)(1) does not change this (AB 12 n.1). Rule 12(b)(1) motions
“may be facial or factual,” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004), but the Ventura Clerk’s October 20, 2011 motion to dismiss did
not rely “‘on extrinsic evidence’” but rather asserted a facial argument “‘solely on
the basis of the pleadings.’” Id. (citation omitted); Further Excerpts of Record
(“FER”) 45-76. His only declarations were filed October 31, 2011, “in support” of
his opposition to the preliminary injunction motion, ER 125; SER 29, 45, 88, 109;
FER 15-44, cf. AB 11, and neither he nor the district court advised Courthouse
News of any intent to rely on them in support of the motion to dismiss. And even
had there been declarations “in connection with the motion to dismiss,” since “no
evidentiary hearing was held we must accept [plaintiff’s] version of events as
true.” Rhoades v. Avon Prods., 504 F.3d 1151, 1160 (9th Cir. 2007).

2

All emphases are added unless otherwise noted.
4

Moreover, Rule 12(b)(1) involves subject matter jurisdiction and “abstention
is not jurisdictional, but reflects a court’s prudential decision not to exercise
jurisdiction which it in fact possesses.” Benavidez v. Eu, 34 F.3d 825, 829 (9th
Cir. 1994) (emph. in original); see Columbia Basin Apt. Ass’n v. Pasco, 268 F.3d
791, 799 (9th Cir. 2001). Since “the district court had subject-matter jurisdiction,”
Benavidez, 34 F.3d at 829, “dismissal on Younger grounds had the same effect as a
dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.’” Ins. Fed. v.
Supreme Court, 669 F.2d 112, 114 (3d Cir. 1982); accord Heritage Farms v.
Solebury, 671 F.2d 743, 745 (3d Cir. 1982) (same under Pullman). O’Shea
illustrates the point: “because the Court was dealing with a complaint which had
been dismissed under … 12(b)(6),” abstention could only be affirmed if “[t]he
Court concluded that under no circumstances could the federal court provide the
relief asked.” Parker v. Turner, 626 F.2d 1, 7 (6th Cir. 1980).3
C.

The Relief Requested Is Not As The Answering Brief Portrays
The injunction sought here simply prohibits the Ventura Clerk “from

continuing his policies resulting in delayed access to new unlimited jurisdiction civil
complaints and denying Courthouse News timely access to new civil unlimited
jurisdiction complaints on the same day they are filed.” ER 74. In Courthouse

3

The Ventura Clerk cites only 5B Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure § 1350 (3d ed. 2012), which notes cases in which abstention
was addressed under 12(b)(1) but never discusses whether that was proper.
5

News Serv. v. Jackson, 2009 U.S. Dist. LEXIS 62300 (S.D. Tex. 2009) (preliminary
injunction, 2010 U.S. Dist. LEXIS 74571 (S.D. Tex. 2010) (permanent injunction),
the same relief resulted in no interference with state court proceedings, and no
reallocation of resources, money or staff. It would only require the Ventura Clerk to
stop denying access until complaints are “processed” – i.e., entered into a computer
system, checked, and “approved for public viewing.” AB 9, ER 114, SER 45-63.
Since the proposed injunction does not support abstention, the Ventura Clerk
distorts the relief sought and the record on which it is based.
Seizing on a single clause of the prayer for injunctive relief, the Answering
Brief asserts the “proposed injunction would have required [the Clerk] to obtain
‘case-by-case’ judicial evaluation” whenever “‘same-day’” access was not
provided, AB 10 (quoting ER 74), which would then supposedly be subject “to
review in federal court.” Id. at 16. This is not an accurate description of the
proposed injunction, ER 59, which gave detail to the prayer for relief by
exempting from same-day access complaints “where the filing party is seeking a
TRO or other immediate relief or has properly filed the pleading under seal” – the
latter of which California law (and not the proposed injunction) dictates must be
performed on a case-by-case basis pursuant to Cal. R. Ct. 2.550-2.551. No
“federal audit” of those decisions is required.
The Answering Brief also depends on evidence that, as noted, is not properly

6

part of the record, and is also disputed by Courthouse News’ declarations, FER 114, 77-295, and contradicted by its complaint, which must be taken as true. E.T.,
682 F.3d at 1122 n.1. While too numerous to list in full, examples include:
 The contention, throughout the Answering Brief, that the proposed
injunction would impose substantial costs and require a reallocation of
services and resources, all of which is based on the faulty premise – at the
heart of the merits – that “processing” must precede access.4
 The claim (AB 5-6), based on a flawed after-the-fact analysis, that the access
delays are not as bad as they really are. ER 69-70; FER 2-5, 293-95.
 The focus (AB 2-3) on the large number of total records processed, while
fewer than 10 unlimited civil complaints are filed each day. SER 52, 84.
 The suggestion (AB 2, 6-7) that only a few e-filing courts provide same-day
access, when it is in fact common, including at courts with no or limited efiling. ER 63-65, 76-92; FER 12-13, 79-80, 134-35.
Even under Rule 12(b)(1), these “conflicts between the facts contained in
declarations ... must be resolved in the plaintiff’s favor” and cannot support the
ruling below. Rhoades, 504 F.3d at 1160 (quotation omitted).
4

Timely access does not increase costs, but making processing a prerequisite to
access does. ER 116-17. The public status of complaints is not contingent on
processing, id., and the Ventura Clerk’s disputed assertions for why he cannot
provide access prior to processing (AB 8-9), i.e., his justifications for the access
denials, go to the merits of the injunctive relief sought and cannot be a basis for
dismissal under either 12(b)(6) or 12(b)(1). Safe Air, 373 F.3d at 1039-40.
7

II.
BY PORTRAYING “CLEAR” LAW AS UNSETTLED, THE ANSWERING
BRIEF CONFIRMS PULLMAN ABSTENTION WAS IMPROPER
Because “Pullman abstention ‘is an extraordinary and narrow exception to
the duty of a [d]istrict [c]ourt to adjudicate a controversy,’” Wolfson, 616 F.3d at
1066 (citation omitted), the Answering Brief resorts to contorting the law to try to
fit that narrow exception. Among the most egregious examples, it asserts:
 This is not a First Amendment case, despite Supreme and Circuit Court
decisions recognizing a First Amendment right to court information
grounded in the right of free expression;
 Pullman abstention is “frequently” allowed in First Amendment cases,
despite Supreme and other precedent to the contrary;
 California law on access to court records is unclear, despite cases describing
as “clear” the state high court’s application of First Amendment law.
For these and other reasons, this case met none of the three mandatory
prerequisites for Pullman abstention, let alone all of them, and “abstention was
inappropriate.” Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003).
A.

The Answering Brief Cannot Meet The First Pullman Factor By
Asserting This Is Not A Free Expression Case And Abstention Is
“Frequently” Allowed In Such Cases, As Clear Law Is To The Contrary
The Answering Brief contends that Courthouse News’ First Amendment

claim involves “sensitive issues of social policy … the federal courts ought not”

8

enter and thus meets the first Pullman factor. AB 26 (citing Wolfson, 616 F.3d at
1066). But it cites no case in which state interests in court administration trumped
the “particular federal concern” in First Amendment cases, id. at 1066 (quotation
omitted), and overlooks that Wolfson and other authority is to the contrary.
1.

Court Access Is Protected By The First Amendment Right Of
Free Expression, And This Right Applies To Civil Complaints

Because “abstention … is inappropriate” in “free expression” cases,
Dombrowski v. Pfister, 380 U.S. 479, 489-90 (1965), the Answering Brief claims
“this is not a ‘free expression’ case, but an ‘access to information case.’” AB 18,
31 (citing, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978)). At best, this
argument reveals a profound misunderstanding of First Amendment law.
In a series of cases starting with Richmond Newspapers v. Virginia, 448 U.S.
555 (1980), the Supreme Court found a First Amendment right to criminal case
information grounded in free expression. “[W]hether … describe[d] … as a ‘right
of access’ … or a ‘right to gather information,’” the right “to attend … hear, see,
and communicate observations” is protected by First Amendment “freedoms … of
speech and press.” Id. at 575-76. A majority of justices adopted the Houchins
dissent’s view that “‘[an] official … policy of concealing … knowledge from the
public by arbitrarily cutting off the flow of information at its source abridges the
freedom of speech and of the press.’” Id. at 583 (Stevens, J., concurring) (quoting
Houchins, 438 U.S. at 38 (Stevens, J., dissenting)).
9

Finding “no … support” for the theory “that civil proceedings present
considerations different than those in criminal” cases, EEOC v. Erection Co., 900
F.2d 168, 169 (9th Cir. 1990) (applying common law), “all the other circuits that
have considered the issue” after Richmond Newspapers extend the First
Amendment access right to civil court records, N.Y. Civil Liberties Union v. N.Y.
City Transit Auth., 652 F.3d 247, 258 (2d Cir. 2011), including complaints.
Vassiliades v. Israely, 714 F. Supp. 604, 605-06 (D. Conn. 1989); Jackson, 2009
U.S. Dist. LEXIS 62300 at *10 (Texas court officials conceded the point).5

5

Having previously conceded there is a constitutional right of timely access to
court records, ER 25, the Ventura Clerk now suggests this right does not apply to
newly-filed complaints and that these documents do not become presumptively
public until some indeterminate time after they are acted on – for “65 days or
perhaps longer.” AB 1, 18-21. This is an extraordinary assertion, and it is plainly
wrong. Under the test for constitutional access, Leigh v. Salazar, 677 F.3d 892,
898 (9th Cir. 2012), experience shows “a long-standing public policy in open
access to complaints,” U.S. ex rel. Dahlman v. Emergency Physicians, 2004 U.S.
Dist. LEXIS 31304, *3-4 (D. Minn. 2004), and logic shows timely access to
complaints is critical because “a complaint – which forms the basis of a civil
action” – is “essential to the Court’s adjudication of the matter as well as the
public’s interest in monitoring the ... courts,” In re Eastman Kodak, 2010 WL
2490982, *1 (S.D.N.Y. 2010). The presumptive right of access applies regardless
of whether action has been taken. NBC Subsidiary (KNBC-TV) v. Superior Court,
20 Cal. 4th 1178, 1208 n.25 (1999) (“Numerous reviewing courts ... have found a
First Amendment right of access to civil litigation documents filed in court as a
basis for adjudication.”); Leucadia v. Applied Ext. Techs., 998 F.2d 157, 164 (3d
Cir. 1993) (“‘by submitting pleadings and motions to the court for decision, one ...
exposes oneself [to] public scrutiny’”) (citation omitted).
10

2.

A Limited Exception To The Rule Against Abstention
In First Amendment Cases Is Inapplicable Here

Alternatively, the Answering Brief contends the Supreme Court “frequently
has applied Pullman abstention in cases involving free expression claims.” AB 35.
But the two cases it cites involved an exception to the general rule: Harrison v.
NAACP, 360 U.S. 167, 178-79 (1959), which allowed abstention only because
defendants agreed not to enforce state laws while they were being interpreted by
state courts, and Babbitt v. UFW Nat’l Union, 442 U.S. 289, 312 n.8 (1979), which
said the district court should consider, under Harrison, whether to protect First
Amendment rights “against enforcement of the state statute pending a definitive
resolution of issues of state law by the Arizona courts.”
The Supreme Court has identified Babbitt as an outlier, contrary to the rule
that “‘abstention … is inappropriate’” where defendants are allegedly “‘abridging
free expression.’” Houston v. Hill, 482 U.S. 451, 467 & n.17 (1987) (quoting
Dombrowski, 380 U.S. at 489-90). And since the disputed policy at issue here
continues to be enforced, the exceptions in Harrison and Babbitt are inapplicable.
3.

First Amendment Cases Raise Federal Concerns
That Do Not Meet The First Pullman Factor

Finally, the Answering Brief contends the rule that Pullman is inappropriate
in First Amendment cases applies only if “the danger of chilling protected speech”
exists. AB 33. But this overlooks what Wolfson recently reaffirmed:

11

In First Amendment cases, the first Pullman element “will almost never
be present because the guarantee of free expression is always an area of
particular federal concern.” Ripplinger v. Collins, 868 F.2d 1043, 1048
(9th Cir. 1989). “‘Indeed, constitutional challenges based on the
[F]irst [A]mendment right of free expression are the kind of cases that
the federal courts are particularly well-suited to hear. That is why
abstention is generally inappropriate when [F]irst [A]mendment rights
are at stake.’” Porter, 319 F.3d at 492-93.
616 F.3d at 1066 (additional citations omitted).6 As this shows, the rule against
abstention is justified only “in part” by fear of chilling. Porter, 319 F.3d at 492.
In any event, this case fits the very definition of “chilling” cited at AB 33. The
“challenged exercise of governmental power was regulatory, proscriptive, or
compulsory” – it imposes a compulsory proscription against access until
complaints are processed and, in the Ventura Clerk’s sole discretion, deemed
suitable for public viewing, ER 59, 69, 74, 114; SER 59-64 – “and [Courthouse
News is] presently … subject to the regulations, proscriptions, or compulsions that
[it is] challenging.” Laird v. Tatum, 408 U.S. 1, 11 (1972).
Indeed, “the delay that is particularly pernicious in First Amendment cases,”
Porter, 319 F.3d at 494, exists not only where the press is prohibited from

6

Like the district court reversed in Porter, the Answering Brief “relied on
Almodovar v. Reiner, 832 F.2d 1138, 1140 (9th Cir. 1987), for the proposition that
there is no absolute rule against abstention in First Amendment cases.” 319 F.3d at
493. But Almodovar, “the only First Amendment case in which [this Circuit has]
found that Pullman abstention was appropriate[,] ... involved an unusual
procedural setting” because the “issue in question was already before the state
supreme court.” Id. at 493-94. As “[t]hat unique circumstance is absent” here,
“the first factor required for Pullman abstention was not satisfied.” Id. at 494.
12

reporting information, Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976),
but also where it is prohibited from “immediate and contemporaneous” access to
court records to obtain information to report. Grove Fresh Distribs. v. Everfresh
Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (following Stuart, 427 U.S. 539).
“[A]bstention [is] inappropriate ... where delay would prejudice constitutional
rights,” Baggett v. Bullitt, 377 U.S. 360, 378 n.11 (1964), because “‘[e]ach passing
day may constitute a separate and cognizable infringement of the First
Amendment.’” Grove Fresh, 24 F.3d at 897 (quoting Nebraska Press Ass’n v.
Stuart, 423 U.S. 1327, 1329 (Blackmun, Circuit Justice, 1975)).7
B.

The Second And Third Pullman Factors Cannot Be Met By Overlooking
“Clear” Law That State Rules On Access To Court Records Are CoExtensive With The First Amendment Right Of Access
This case is not “‘[t]he paradigm of the ‘special circumstances’ that make

abstention appropriate,’” because it is not “‘a case where the challenged state
statute is susceptible of a construction by the state judiciary that would avoid or
modify the necessity of reaching a federal constitutional question.’” Pue v. Sillas,

7

L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32 (1999) (AB 3134), involved no chilling effect because it found no First Amendment right of
access to police arrest records. Id. at 40. Similarly, Sullo & Bobbitt, PLLC v.
Abbott, 2012 U.S. Dist. LEXIS 95223 (N.D. Tex. 2012) (AB 20), rejected an
attempt to access police citations for commercial purposes. Id. at *34-35. Not
only did those cases involve police records as opposed to court records, the
Answering Brief’s intimation that Courthouse News is engaged in commercial
speech because it “collects and sells information,” AB 7, has been rejected by the
Supreme Court. New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964).
13

632 F.2d 74, 78 (9th Cir. 1980) (quoting Babbitt, 442 U.S. at 306). The Answering
Brief’s attempt to stretch the paradigm fails to meet the other Pullman factors.
1.

It Is “Clear” California Recognizes A First Amendment Right Of
Access To Substantive Civil Court Records

Aware the third Pullman factor requires “an uncertain issue of state law,”
Pue, 632 F.2d at 78, the Answering Brief says it is “unsettled” whether the First
Amendment right of access would apply to the complaints at issue here. AB 20.
This is demonstrably untrue. “Uncertainty for purposes of Pullman
abstention means that a federal court cannot predict with any confidence how the
state’s highest court would decide an issue of state law,” Pearl Inv. Co. v. San
Francisco, 774 F.2d 1460, 1465 (9th Cir. 1985), and “[i]t is clear … [the state]
high court [in NBC Subsidiary] enunciated ... a rule under which a certain class of
court-filed documents is subject to a presumptive First Amendment right of public
access.” Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60, 84 (2007).8
Any deprivations of that right, including delays, must satisfy First Amendment
standards. NBC Subsidiary, 20 Cal. 4th at 1217-18, 1219 n.42 (rejecting argument
8

As NBC Subsidiary explains, the cases cited at AB 18-20 are inapposite. For
example, Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) held “the First
Amendment does not compel public access to discovery materials that are neither
used at trial nor submitted as a basis for adjudication,” 20 Cal. 4th at 1208 n.25,
and “subsequent decisions have declined to follow the reasoning and approach of
the Reporters Committee decision” that “‘[c]ontemporaneity of access to written
material does not significantly’ enhance the public’s ability to ensure proper
functioning of the courts.’” Id. at 1220 n.43 (quoting In re Reporters Comm. for
Freedom of the Press, 773 F.2d 1325, 1337 n.9 (D.C. Cir. 1985)).
14

that “‘[d]elaying media access ... is not’ ... subject to “‘exacting First Amendment
scrutiny’”).
The Answering Brief also contends “NBC Subsidiary’s holding regarding
open courtrooms has nothing to do with state laws requiring ‘reasonable access’ to
court documents.” AB 41. But the rules on denials of access to court records were
“derived” from NBC Subsidiary. Cal. R. Ct. 2.550 Advisory Comm. comment. As
for the rules providing for “reasonable access to trial court records that are
maintained in electronic form” – which do not even apply here, see AB 2 – they
were “not intended to give the public a right of access to any record that they are
not otherwise entitled to access” under Cal. R. Ct. 2.500(c).9
“In short, no basis exists for concluding that court records should be
differentiated from courtroom proceedings for purposes of First Amendment
access rights.” In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1062 (2006).
2.

Under NBC Subsidiary, First Amendment Precedent Controls
Construction of California Rules On Access To Court Records

The notion that California courts might interpret rules based on the First
Amendment (or Government Code § 68150) in a manner that avoids the First

9

Cal. R. Ct. 10.850-10.856 (AB 28) govern access to non-adjudicative,
administrative court records, and are also inapplicable. And contrary to the
Answering Brief, state lawmakers are not “actively” and “currently grappling”
with the issue of reasonable access through SB 326. AB 13-14, 28. As the
Ventura Clerk well knows, SB 326 has not been acted on in 2012 and is dead. See
Courthouse News’ Request For Judicial Notice (“RJN”) (items 1-3 & Exh. A).
15

Amendment question – as required by the second Pullman factor – flies in the face
of NBC Subsidiary’s holding that courts “must construe” laws concerning court
access consistent with “federal constitutional precedents.” 20 Cal. 4th at 1197,
1216. As state courts recognize, this requires that they follow First Amendment
precedent in interpreting access to court records. H.B. Fuller Co. v. Does, 151 Cal.
App. 4th 879, 893 (2007) (Rule 2.550 cannot be read to exempt all “‘discovery
motions and records’” from the right of access “without in some cases offending
[NBC Subsidiary’s] constitutional underpinnings”); Burkle, 135 Cal. App. 4th at
1060 (NBC Subsidiary analysis “was necessitated by its conclusion that the First
Amendment provides a right of access …, thus requiring [Civil Procedure Code]
section 124 to be construed in accordance with First Amendment requirements. …
Precisely the same analysis necessarily applies to [Family Code] section 2024.6.”).
The Answering Brief also mischaracterizes Article I, § 3(b) of the California
Constitution (Proposition 59) as a “specialized state constitutional provision”
concerning access to court records. AB 39. “Proposition 59 is simply a
constitutionalization of the CPRA,” Sutter’s Place Inc. v. Superior Court, 161 Cal.
App. 4th 1370, 1382 (2008), and California’s Public Records Act is “inapplicable
to the records of the judicial branch.” Mercury Interactive, 158 Cal. App. 4th at
77. While Article I, § 3(b) requires laws to be construed “in a manner favoring a
right of access,” rules on access to court records are “not altered by” it, but are

16

construed “consistently with language in the rules’ progenitor, NBC Subsidiary,”
id. at 77, 101, which followed federal constitutional standards because “[p]ast
California decisions have not interpreted the state Constitution as providing an
equally extensive right of public access.” 20 Cal. 4th at 1197 n.13.
California precedent is thus clear that California courts treat state rules on
access to court records not as provisions “that lack[] a federal counterpart,” AB 39,
but as mirroring the federal test. “In such situations”:
[T]he state courts would simply be deciding a federal constitutional
issue within the framework of construing state law. A primary motive
for abstaining – avoidance of constitutional issues – is not served.
The issue is simply referred to another forum. The state courts,
however, possess no special institutional competence to decide such
issues. Since the federal courts are at least as adequate a forum, no
real purpose would be served by denying a litigant his choice of a
federal forum.
Hobbs v. Thompson, 448 F.2d 456, 463 (5th Cir. 1971).10 “Abstention is
[therefore] inappropriate.” Id.
III.
THE ANSWERING BRIEF ALSO CONFIRMS ABSTENTION WAS NOT
APPROPRIATE BY SEEKING TO UNTIE IT FROM O’SHEA’S LIMITS
Although the court below abstained under O’Shea, the Answering Brief
shifts focus by referring generally to the “doctrine of equitable abstention.” But
10

As Hobbs shows, reversal does not “negate the Pullman doctrine in its entirety.”
AB 41. The paradigm case for Pullman abstention remains unaffected, as do cases
where state provisions may exceed federal standards. Manney v. Cabell, 654 F.2d
1280 (9th Cir. 1980) (AB 42).
17

abstention is not an amorphous concept to be applied whenever a plaintiff seeks
relief touching on the state courts. As this Court has said, federal courts may
“abstain only in those cases falling within the ‘carefully defined’ boundaries of
federal abstention doctrines.” AmerisourceBergen Corp. v. Roden, 495 F.3d 1143,
1148 (9th Cir. 2007).
The Answering Brief also errs in insisting Younger’s limitations do not
apply when a district court abstains under O’Shea, a form of Younger abstention.
And its claim that Gerstein v. Pugh, 420 U.S. 103 (1975) – which holds abstention
is inappropriate when the plaintiff raises only ancillary issues that “could not
prejudice the conduct of the trial on the merits,” id. at 108 n.9 – is “limited to cases
in which the federal plaintiff has no opportunity to press its claims in state court,”
AB 56 (emph. in original), has been rejected by this and other circuits. See, e.g.,
Green, 255 F.3d at 1100-02.
The Answering Brief thus has no alternative but to exaggerate the relief
sought to try to fit this case within O’Shea. But as explained in Section I(C), these
distortions cannot be credited and thus O’Shea cannot be upheld.
A.

“Equitable Abstention” Is Not A Defined Doctrine And Provides No
Basis Outside Of O’Shea For Affirming Abstention In This Case
“Equitable abstention” is not itself a defined doctrine. Rather, the term is

used to describe abstention doctrines generally, all of which – including Pullman
and Younger – are equitable. Each abstention doctrine has its own defined limits,
18

and as this Circuit has instructed, those limits must be observed:
As virtually all cases discussing these doctrines emphasize, the
“limited circumstances” in which … abstention by federal courts is
appropriate … “‘remain the exception rather than the rule,’” … and,
thus, when each of an abstention doctrine’s requirements are not
strictly met, the doctrine should not be applied.
AmerisourceBergen, 495 F.3d at 1148 (quoting Green, 255 F.3d at 1089) (quoting
New Orleans Pub. Serv. v. New Orleans, 491 U.S. 350, 359 (1989)); see Martin v.
Stewart, 499 F.3d 360, 364 (4th Cir. 2007) (“[T]he Supreme Court has never
allowed abstention to be a license for free-form ad hoc judicial balancing of the
totality of state and federal interests in a case. The Court has instead defined
specific doctrines that apply in particular classes of cases.”).
Although the various abstention doctrines “are not ‘rigid pigeonholes into
which federal courts must try to fit cases,’ … the categories do matter: they are
‘carefully defined,’ … and the general rule, unless a case falls into one of those
exceptions, is that federal courts have a ‘virtually unflagging obligation … to
exercise the jurisdiction given them.’” Rio Grande Cmty. Health Ctr. v. Rullan,
397 F.3d 56, 68 (1st Cir. 2005) (citations omitted).11
Ignoring this command, the Answering Brief cobbles together a variety of

11

If 40 years ago “equitable abstention ha[d] not produced clearly defined rules,”
Allegheny Airlines v. Pennsylvania PUC, 465 F.2d 237, 243 (3d Cir. 1972) (AB
46), that is no longer true. AmerisourceBergen, 495 F.3d at 1148. Allegheny is
now read as an application of Burford abstention rather than a free-form equitable
doctrine. Grode v. Mut. Fire, Marine & Inland Ins., 8 F.3d 953 (3d Cir. 1993).
19

equitable principles to transform O’Shea, and the Younger principles underlying it,
from a “circumscribed exception to mandatory federal jurisdiction” into a “broad
swath through the fabric of federal jurisdiction, relegating parties to state court
whenever state court litigation could resolve a federal question.” Green, 255 F.3d
at 1099. Most of the citations offered to support this free-form equitable
abstention doctrine are selectively excerpted from Younger cases which adhere to
Younger’s prudential limitations. Others do not involve abstention at all.12
The Answering Brief’s reliance on Rizzo v. Goode, 423 U.S. 362 (1976),
which “unlike O’Shea ... did not arise on the pleadings,” id. at 373, is misplaced.
Rizzo involved an injunction ordered after two trials, and found the relief – an “allencompassing 14-page” manual governing police conduct – exceeded the “scope
of federal equity power” where the misconduct was not caused by departmental
policy, but by a few officers. Id. at 371, 378-79. Rizzo is “a narrow opinion,”
Parker, 626 F.2d at 6, which courts “do not read … as requiring total abstention”:
[T]he teaching of Rizzo is not so broad. That case actually holds that
a federal court should refrain from assuming a comprehensive
supervisory role via its injunctive powers over broad areas of local
government for the purpose of preventing speculative and probably
only sporadic future misconduct by local officials toward an imprecise
class of potential victims, especially when that misconduct is not part
12

See Lewis v. Casey, 518 U.S. 343 (1996) (standing, not abstention); Missouri v.
Jenkins, 515 U.S. 70 (1995) (same); Los Angeles v. Lyons, 461 U.S. 95 (1983) (no
irreparable injury); Kelley v. Johnson, 425 U.S. 238 (1976) (decision on the
merits); Stefanelli v. Minard, 342 U.S. 117 (1951) (pre-Younger case applying
“maxim that equity will not enjoin a criminal prosecution”).
20

of a pattern of persistent and deliberate official policy.
Campbell v. McGruder, 580 F.2d 521, 526 (D.C. Cir. 1978).
Moreover, even where Rizzo concerns may apply, this Circuit has found
them satisfied when a federal court “allowed defendants an opportunity jointly to
develop the remedial plan needed to implement the injunction. No further
deference was required; the order itself required only that defendants supply the
services that the court found to be required under federal law.” Katie A. v. Los
Angeles Cnty., 481 F.3d 1150, 1157 (9th Cir. 2007).13
In contrast to Rizzo, there is little doubt the constitutional violation alleged
here is attributable not to the “unauthorized actions of a few individual[s]” in the
clerk’s office, but to the Ventura Clerk’s policies. ER 69, 114, 116-17; SER 55,
62. And contrary to the impression left by the Answering Brief’s out-of-context
quote, AB 8, Courthouse News is not demanding behind-the-counter access, nor
attempting to dictate the manner in which the Ventura Clerk should provide the
relief sought. ER 60-74, 99, 116-17; Jackson, 2009 U.S. Dist. LEXIS 62300 at
*14-15 (one-sentence injunction requiring same-day access without dictating
13

Permitting the state agency to craft the specific method in which it will comply
with the federal court’s order can address the federalism and comity concerns of
Younger/O’Shea. Fernandez v. Trias Monge, 586 F.2d 848, 851 n.2 (1st Cir.
1978) (O’Shea concerns addressed where order “would outline only the minimum
due process standard, leaving the choice of procedures and operational details to
the Commonwealth”). In contrast, in Wallace v. Kern, 520 F.2d 400 (2d Cir. 1975)
(AB 56), “the federal court ... directed its own procedures for state hearings in
considerable detail.” Id. at 408.
21

manner in which access is provided); Jackson, 2010 U.S. Dist. LEXIS 74571 at *36 (permanent injunction with carve-outs in appropriate circumstances and not
dictating manner in which same-day access must be provided).
B.

The Answering Brief Cannot Rely On Younger’s Equitable Principles
Without Satisfying The Limitations That Accompany Them
Unable to meet “the prudential limitations imposed upon Younger

abstention,” the Answering Brief contends they “do not apply [to] O’Shea.” AB
54. No authority is offered for this theory, and it is wrong for three reasons.
First, the Answering Brief cannot dispute the comity concern upon which
O’Shea is based – interference with state court proceedings – is the same concern
underlying Younger and the basis of its prudential limitations; the only difference
is O’Shea addressed future proceedings. See, e.g., Pompey, 95 F.3d at 1548 n.6.
Second, most O’Shea cases, including several cited in the Answering Brief,
treat O’Shea as simply an extension of Younger. See, e.g., Kaufman, 466 F.3d at
86-88 & n.1; Ballard v. Wilson, 856 F.2d 1568, 1570-71 (5th Cir. 1988); Parker,
626 F.2d at 7-8. Indeed, in Pompey, the majority rejected the view of a concurring
judge that O’Shea was an independent abstention doctrine. 95 F.3d at 1548 n.6,
1553-55.
Third, as illustrated by O’Shea, decisions that do not explicitly discuss the
interrelationship between Younger and O’Shea implicitly recognize it by abstaining
only where the relief sought required major and ongoing intrusion by federal courts
22

into the substance of future state court proceedings. AOB 36-43. The Answering
Brief concedes the point by noting E.T. distinguished L.A. Cnty. Bar Ass’n v. Eu,
979 F.2d 697 (9th Cir. 1992), which rejected O’Shea abstention, because “Eu did
not involve substantive review of any cases.” AB 51 n.12. While it may not have
recited Younger’s elements, E.T. clearly addressed its prudential limitations.14
C.

Because The Relief Sought By Courthouse News Is Ancillary To State
Court Proceedings, This Case Is Governed By Gerstein, Not O’Shea
The Answering Brief also errs in claiming Gerstein – which precludes

abstention where the relief is ancillary to proceedings on the merits in state court,
420 U.S. at 108 n.9 – does not apply here because Courthouse News “can institute
proceedings in state court to vindicate its claimed access rights.” AB 56.15
Gerstein applies even if the federal plaintiff could have filed suit in state
court to adjudicate its federal issues. Bickham v. Lashof, 620 F.2d 1238, 1244-45
(7th Cir. 1980). As the Sixth Circuit explained:
[W]hether the federal plaintiff has an “opportunity” to have the issue
addressed in state court for Younger purposes does not turn on
whether the plaintiff could file a new complaint in state court. ... Such
14

The Answering Brief also quotes Bice v. Louisiana Pub. Defender Board, 677
F.3d 712 (5th Cir. 2012), for the theory “equitable abstention can be applied even
when the interference does not ‘target[] the conduct of a proceeding directly.’” Id.
at 717 (AB 46). However, Bice found the “prerequisite for Younger abstention is
satisfied” because granting relief “would likely result in interference,” whether
targeted or indirect, with plaintiff’s state “court proceeding.” Id. at 717-18.
15

The Answering Brief does not dispute that Gerstein applies to O’Shea
abstention, perhaps because the O’Shea cases on which it relies found it necessary
to distinguish Gerstein. See Pompey, 95 F.3d at 1551; Parker, 626 F.2d at 8.
23

a rule would not only extend Younger abstention far beyond its
purpose of preventing “federal intervention in state judicial
processes,” but it would be contrary to Gerstein and its progeny. We
are aware of no case in which a federal plaintiff is deemed to have the
“opportunity” to have his or her federal claim heard in a state
proceeding solely because the plaintiff could have amended an
existing complaint or filed a new complaint in state court. If that were
the rule, Younger abstention would almost always be appropriate ….
Habich v. Dearborn, 331 F.3d 524, 531 (6th Cir. 2003) (citation omitted). The
same rule holds true for intervention. FOCUS v. Allegheny Cnty. Court of
Common Pleas, 75 F.3d 834, 844 (3d Cir. 1996) (in court access case, plaintiff had
no duty under Younger to intervene in state court); accord Fernandez, 586 F.2d at
852-53 (that “plaintiff could have sought an injunction ... in a … separate
Commonwealth court proceeding … is of no consequence”).16
This rule applies equally in this Circuit. Because “absent extraordinary
circumstances, each plaintiff is entitled to his own day in court,” Green rejected the
“notion that a federal plaintiff automatically loses his right to proceed in federal
court if there is any state court case pending in which he could intervene to
adjudicate his federal law issue.” 255 F.3d at 1100-01. Neither is there a
requirement to initiate a new state court action. “There is no principled difference,
16

Acknowledging it “generally applies to parties to the criminal prosecution,”
News Journal Corp. v. Foxman, 939 F.2d 1499 (11th Cir. 1991) (AB 57)
nevertheless found Younger abstention appropriate only because the injunction
would “restrict the ability of the trial court to impanel an impartial jury, and
thereby interfere with the court’s ability and duty to conduct a fair criminal trial.”
Id. at 1511. Importantly, the plaintiff had unsuccessfully intervened in the state
court action, and its appeal in state court was pending when it filed a federal action.
24

with regard to the comity principles underlying Younger, between requiring a
plaintiff to begin his or her own state court or administrative proceedings … and
requiring [intervention] in someone else’s ... suit.” Id. at 1102.
D.

The Answering Brief’s Argument For O’Shea Abstention Rests On
Misstatements Of The Relief Sought And The Related Factual Record
Since this case does not fit within the confines of O’Shea, the only way the

Answering Brief can attempt to argue that the relief sought by Courthouse News
falls within those confines is to distort the true nature of that relief.
As shown in Section I(C), Courthouse News seeks a one-time injunction
prohibiting the Ventura Clerk from “imposing a blanket sealing policy” (i.e., his
across-the-board prohibition on viewing new complaints until after they are
processed), exactly the kind of prohibition the Answering Brief itself
acknowledges “would not ... dictate state or local budget priorities in any way.”
See AB 58. With this prohibition eliminated, there would be no barrier to sameday access to the handful of new complaints filed each day. The injunction would
not require the Ventura Clerk to process complaints faster, and would not mandate
“a significant reallocation of court services.” AB 49. It is ancillary to substantive
proceedings, and, as Jackson shows, does not require “a new hearing system”
subject to monitoring by the federal court in which superior court judges would
determine when each new complaint would become public, and would not subject

25

judges to any risk of contempt. Cf. AB 10-11, 16, 50-51.17
CONCLUSION
As evidenced by the many courts that already provide it, ensuring journalists
have access at the end of each court day to the day’s new civil complaints is
fundamentally a matter of will. This lawsuit was only necessary because of the
Ventura Clerk’s stubborn refusal to budge from his policy of not allowing access
until after full processing. This is not a proper a case for either Pullman or O’Shea
abstention, and the district court’s order should be reversed.
DATED: September 12, 2012

BRYAN CAVE LLP
ROGER MYERS
RACHEL MATTEO-BOEHM
DAVID GREENE
LEILA KNOX
By: /s/ Rachel Matteo-Boehm
Attorneys for Plaintiff-Appellant
Courthouse News Service

17

In the unlikely event any future hearings were necessary, they would be rare and
limited to where the Ventura Clerk withheld complaints except as allowed by the
injunction. Jackson, 2010 U.S. Dist. LEXIS at *5-6 (listing exceptions to sameday access). That would raise no more comity concerns than a case in which a
court clerk failed to comply with an injunction against employment discrimination,
and in any event, the comity concerns of Younger and O’Shea are not implicated
by injunctive relief requiring a hearing – a “simple, nondiscretionary procedural
safeguard.” Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. 1981).
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CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in
Rule 32(a)(7)(B)(ii) of the Federal Rules of Appellate Procedure. This brief uses
14 point proportional type and contains 6,998 words, excluding the portions
exempted by Rule 32(a)(7)(B)(iii) of the Federal Rules of Appellate Procedure.
DATED: September 12, 2012

BRYAN CAVE LLP
ROGER MYERS
RACHEL MATTEO-BOEHM
DAVID GREENE
LEILA KNOX
By: /s/ Rachel Matteo-Boehm
Attorneys for Plaintiff-Appellant
Courthouse News Service

CERTIFICATE OF SERVICE
I hereby certify that on September 12, 2012, 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.
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.

/s/ Rachel Matteo-Boehm