Courthouse News Service v. Michael Planet
Filing
33
Submitted (ECF) supplemental excerpts of record in 1 volume(s). Submitted by Appellee Michael D. Planet. Date of service: 07/30/2012. [8507396] (NG)
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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. 11-08083
APPELLEE’S SUPPLEMENTAL EXCERPTS OF RECORD
Robert A. Naeve
Erica L. Reilley
Nathaniel P. Garrett
JONES DAY
3161 Michelson Drive
Suite 800
Irvine, CA 92612.4408
Telephone: +1.949.851.3939
Facsimile: +1.949.553.7539
E-mail:
rnaeve@jonesday.com
Attorneys for Defendant-Appellee
MICHAEL PLANET
COURTHOUSE NEWS SERVICE V. PLANET
(No. 11-57187)
INDEX TO SUPPLEMENTAL EXCERPTS OF RECORD
Docket
No.
Date
Description
22
10/20/2011
Defendant’s Request for Judicial
Notice in Support of Motion to
Dismiss and Abstain
1
25-1
10/31/2011
Declaration of Julie Camacho in
Support of Defendant’s Opposition to
Plaintiff’s Motion for Preliminary
Injunction
29
25-2
10/31/2011
Declaration of Cheryl Kanatzar in
Support of Defendant’s Opposition to
Plaintiff’s Motion for Preliminary
Injunction
45
25-3
10/31/2011
Declaration of Karen Dalton-Koch in
Support of Defendant’s Opposition to
Plaintiff’s Motion for Preliminary
Injunction
88
25-4
10/31/2011
Declaration of Robert Sherman in
Support of Defendant’s Opposition to
Plaintiff’s Motion for Preliminary
Injunction
109
i
Page
Docket
No.
Date
24
10/31/2011
Description
Plaintiff Courthouse News Service’s
Opposition to the Motion to Dismiss
and Abstain of Defendant Michael
Planet
ii
Page
118
Case 2:11-cv-08083-R -MAN Document 22
1
2
3
4
5
6
7
8
Filed 10/20/11 Page 1 of 4 Page ID #:433
Robert A. Naeve (State Bar No. 106095)
rnaeve@jonesday.com
Erica L. Reilley (State Bar No. 211615)
elreilley@jonesday.com
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, CA 92612
Telephone: (949) 851-3939
Facsimile: (949) 553-7539
Attorneys for Defendant
MICHAEL PLANET, IN HIS OFFICIAL
CAPACITY AS COURT EXECUTIVE
OFFICER/CLERK OF THE VENTURA
COUNTY SUPERIOR COURT
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA
11
12
13
COURTHOUSE NEWS SERVICE,
Plaintiff,
14
15
16
17
18
19
v.
MICHAEL PLANET, IN HIS
OFFICIAL CAPACITY AS COURT
EXECUTIVE OFFICER/CLERK OF
THE VENTURA COUNTY
SUPERIOR COURT,
Defendant.
Case No. CV11-08083 R (MANx)
Assigned for all purposes to
Hon. Manuel L. Real
DEFENDANT’S REQUEST FOR
JUDICIAL NOTICE IN
SUPPORT OF MOTION TO
DISMISS AND ABSTAIN
Date:
November 21, 2011
Time:
10:00 a.m.
Courtroom: 8
20
21
22
23
24
25
26
27
28
Request for Judicial Notice in Support of
Motion to Dismiss and Abstain
Case No. CV 11-08083 R (MANx)
SER 1
Case 2:11-cv-08083-R -MAN Document 22
1
Filed 10/20/11 Page 2 of 4 Page ID #:434
Pursuant to Federal Rule of Evidence 201, and in support of his concurrently
2
filed Motion to Dismiss and Abstain, defendant Michael D. Planet, in his official
3
capacity as Executive Officer and Clerk of the Superior Court of California, County
4
of Ventura, respectfully requests that the Court take judicial notice of the following
5
documents:
6
1.
California Senate Bill 326, from the 2011-2002
Regular Session (as amended September 1, 2011),
available at http://www.leginfo.ca.gov/pub/1112/bill/sen/sb_0301-0350/sb_326_bill_20110901
_amended_asm_v95.pdf. A true and correct copy
of this document is attached hereto as Exhibit A.
2.
The California Senate Judiciary Committee’s May
3, 2011 Bill Analysis of Senate Bill 326 (as
amended April 25, 2011), available at
http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_
0301-0350/sb_326_cfa_20110502_142806_sen_
comm.html. A true and correct copy of this
document is attached hereto as Exhibit B.
3.
Letter from the Judicial Council of California,
Administrative Office of the Courts, to the Senate
Judiciary Committee, dated April 27, 2011. A true
and correct copy of this document is attached
hereto as Exhibit C.
4.
Letter from the Judicial Council of California,
Administrative Office of the Courts, to the
Assembly Judiciary Committee, dated June 9,
2011. A true and correct copy of this document is
attached hereto as Exhibit D.
5.
The Bill History of California Senate Bill 326, from
the 2011-2002 Regular Session, available at
http://www.leginfo.ca.gov/pub/1112/bill/sen/sb_0301-0350/sb_326_bill_
20110901_history.html. A true and correct copy of
this document is attached hereto as Exhibit E.
6.
Letter from the Judicial Council of California,
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Request for Judicial Notice in Support of
Motion to Dismiss and Abstain
Case No. CV 11-08083 R (MANx)
SER 2
Case 2:11-cv-08083-R -MAN Document 22
1
Administrative Office of the Courts, to the Senate
Judiciary Committee, dated August 8, 2011. A true
and correct copy of this document is attached
hereto as Exhibit F.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Filed 10/20/11 Page 3 of 4 Page ID #:435
“A court shall take judicial notice if requested by a party and supplied with
the necessary information.” Fed. R. Evid. 201(d). “A judicially noticed fact must
be one not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot be reasonably
questioned.” Fed. R. Evid. 201(b).
The Court “may take judicial notice of court filings and other matters of
public record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6
(9th Cir. 2006). Exhibits A, B, and E are matters of public record. Further, they are
not reasonably subject to dispute. Thus, they are the proper subject of judicial
notice pursuant to Rule 201 of the Federal Rules of Evidence.
The Court may also take judicial notice of the contents of administrative
bodies’ records, as well as those documents that establish the dates upon which the
administrative bodies take action, where the record’s contents or the action’s dates
are not subject to reasonable dispute. See City of Las Vegas, Nev. v. F.A.A., 570
F.3d 1109, fn. 1 (9th Cir. 2009) (taking judicial notice of document that established
date administrative office approved waiver); Jimenez v. Domino's Pizza, Inc., 238
F.R.D. 241, 246 (C.D. Cal. 2006) (taking judicial notice of contents of opinion
letter issued by Division of Labor Standards Enforcement). Exhibits C, D, and F
are records from the Judicial Council of California, Administrative Office of the
Courts. Further, their existence is not reasonably subject to dispute. Thus, they are
the proper subject of judicial notice.
////
////
-2-
Request for Judicial Notice in Support of
Motion to Dismiss and Abstain
Case No. CV 11-08083 R (MANx)
SER 3
Case 2:11-cv-08083-R -MAN Document 22
1
Filed 10/20/11 Page 4 of 4 Page ID #:436
For the foregoing reasons, Defendant requests that, in considering and ruling
2
upon his concurrently filed Motion to Dismiss and Abstain, the Court take judicial
3
notice of Exhibits A through F, attached hereto.
4
Dated:
October 20, 2011
JONES DAY
5
6
By: /s/ Robert Naeve
Robert A. Naeve
7
Attorneys for Defendant
MICHAEL PLANET, IN HIS
OFFICIAL CAPACITY AS COURT
EXECUTIVE OFFICER/CLERK OF
THE VENTURA COUNTY
SUPERIOR COURT
8
9
10
11
12
LAI-3151596
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-
Request for Judicial Notice in Support of
Motion to Dismiss and Abstain
Case No. CV 11-08083 R (MANx)
SER 4
Case 2:11-cv-08083-R -MAN Document 22-1
#:437
Filed 10/20/11 Page 1 of 24 Page ID
EXHIBIT A
SER 5
Case 2:11-cv-08083-R -MAN Document 22-1
#:438
Filed 10/20/11 Page 2 of 24 Page ID
A4
SER 6
Case 2:11-cv-08083-R -MAN Document 22-1
#:439
Filed 10/20/11 Page 3 of 24 Page ID
A5
SER 7
Case 2:11-cv-08083-R -MAN Document 22-1
#:440
Filed 10/20/11 Page 4 of 24 Page ID
A6
SER 8
Case 2:11-cv-08083-R -MAN Document 22-1
#:441
Filed 10/20/11 Page 5 of 24 Page ID
A7
SER 9
Case 2:11-cv-08083-R -MAN Document 22-1
#:442
Filed 10/20/11 Page 6 of 24 Page ID
EXHIBIT B
SER 10
Case 2:11-cv-08083-R -MAN Document 22-1
#:443
Filed 10/20/11 Page 7 of 24 Page ID
B8
SER 11
Case 2:11-cv-08083-R -MAN Document 22-1
#:444
Filed 10/20/11 Page 8 of 24 Page ID
B9
SER 12
Case 2:11-cv-08083-R -MAN Document 22-1
#:445
Filed 10/20/11 Page 9 of 24 Page ID
B 10
SER 13
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 10 of 24 Page ID
#:446
B 11
SER 14
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 11 of 24 Page ID
#:447
B 12
SER 15
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 12 of 24 Page ID
#:448
EXHIBIT C
SER 16
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 13 of 24 Page ID
#:449
C 13
SER 17
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 14 of 24 Page ID
#:450
C 14
SER 18
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 15 of 24 Page ID
#:451
C 15
SER 19
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 16 of 24 Page ID
#:452
EXHIBIT D
SER 20
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 17 of 24 Page ID
#:453
D 16
SER 21
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 18 of 24 Page ID
#:454
D 17
SER 22
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 19 of 24 Page ID
#:455
EXHIBIT E
SER 23
SB 326 Senate Bill - History
Page 1 of 1
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 20 of 24 Page ID
#:456
COMPLETE BILL HISTORY
BILL NUMBER : S.B. No. 326
AUTHOR : Yee
TOPIC
: Court records: public access.
TYPE OF BILL :
Active
Non-Urgency
Non-Appropriations
Majority Vote Required
Non-State-Mandated Local Program
Fiscal
Non-Tax Levy
BILL HISTORY
2011
Sept. 1 From committee with author's amendments. Read second time and
amended. Re-referred to Com. on APPR.
Aug. 25 Set, second hearing. Placed on APPR. suspense file. Held in
committee and under submission.
Aug. 22 From committee with author's amendments. Read second time and
amended. Re-referred to Com. on APPR.
Aug. 17 Hearing postponed by committee.
July 6 Set, first hearing. Hearing canceled at the request of author.
June 21 From committee: Do pass and re-refer to Com. on APPR. with
recommendation: To consent calendar. (Ayes 10. Noes 0.) (June 21).
Re-referred to Com. on APPR.
June 9 Referred to Com. on JUD.
June 1 In Assembly. Read first time. Held at Desk.
May 31 Read third time. Passed. (Ayes 39. Noes 0. Page 1184.) Ordered to
the Assembly.
May 24 Read second time. Ordered to third reading.
May 23 From committee: Be placed on second reading file pursuant to Senate
Rule 28.8.
May 13 Set for hearing May 23.
May 10 Read second time and amended. Re-referred to Com. on APPR.
(Corrected May 11.)
May 9
From committee: Do pass as amended and re-refer to Com. on APPR.
(Ayes 5. Noes 0. Page 860.) (May 3).
Apr. 25 From committee with author's amendments. Read second time and
amended. Re-referred to Com. on JUD.
Apr. 21 Set for hearing May 3.
Feb. 24 Referred to Com. on JUD.
Feb. 15 From printer. May be acted upon on or after March 17.
Feb. 14 Introduced. Read first time. To Com. on RLS. for assignment. To
print.
E 18
http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0301-0350/sb_326_bill_20110901_hist...
SER 24
10/13/2011
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 21 of 24 Page ID
#:457
EXHIBIT F
SER 25
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 22 of 24 Page ID
#:458
F 19
SER 26
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 23 of 24 Page ID
#:459
F 20
SER 27
Case 2:11-cv-08083-R -MAN Document 22-1 Filed 10/20/11 Page 24 of 24 Page ID
#:460
F 21
SER 28
Case 2:11-cv-08083-R -MAN Document 25-1
#:532
1
2
3
4
5
6
7
8
Filed 10/31/11 Page 1 of 16 Page ID
Robert A. Naeve (State Bar No. 106095)
rnaeve@jonesday.com
Erica L. Reilley (State Bar No. 211615)
elreilley@jonesday.com
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, CA 92612
Telephone: (949) 851-3939
Facsimile: (949) 553-7539
Attorneys for Defendant
MICHAEL PLANET, IN HIS OFFICIAL
CAPACITY AS COURT EXECUTIVE
OFFICER/CLERK OF THE VENTURA
COUNTY SUPERIOR COURT
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA
11
12
13
COURTHOUSE NEWS SERVICE,
Plaintiff,
14
15
16
17
18
19
v.
MICHAEL PLANET, IN HIS
OFFICIAL CAPACITY AS COURT
EXECUTIVE OFFICER/CLERK OF
THE VENTURA COUNTY
SUPERIOR COURT,
Defendant.
Case No. CV11-08083 R (MANx)
Assigned for all purposes to
Hon. Manuel L. Real
DECLARATION OF JULIE
CAMACHO IN SUPPORT OF
DEFENDANT’S OPPOSITION
TO PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION
Date:
Time:
Courtroom:
November 21, 2011
10:00 a.m.
8
20
21
22
23
24
25
26
27
28
Declaration of Julie Camacho ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 29
Case 2:11-cv-08083-R -MAN Document 25-1
#:533
Filed 10/31/11 Page 2 of 16 Page ID
1
I, JULIE CAMACHO, hereby declare as follows:
2
1.
I am a Court Program Manager for the Superior Court of the State of
3
California, County of Ventura (the “Ventura Superior Court”). I am responsible for
4
overseeing the operations of the civil, small claims and appeals units of the Ventura
5
Superior Court and the Court Processing Assistants (“CPAs”) who work at the Hall
6
of Justice, the primary courthouse location. I have personal knowledge of the facts
7
stated in this Declaration, and I could and would competently and truthfully testify
8
to these facts if called upon to do so.
9
2.
It is my understanding that Plaintiff Courthouse News Service
10
(“CNS”) claims in this action that it has a right to “same-day access” of all newly
11
filed unlimited civil complaints, and that Ventura Superior Court’s processes have
12
led to “significant” delays in CNS’s access to those court records.
13
3.
Specifically, I understand that CNS claims that, during the period of
14
August 8, 2011, through September 2, 2011, CNS’s reporter, Juliana Krolak,
15
reviewed 152 newly filed unlimited civil complaints and that CNS received same-
16
or next-day access in only a small fraction of those complaints.
17
4.
I conducted my own independent analysis of the new unlimited
18
general civil complaints that were filed by the Ventura Superior Court at the Hall of
19
Justice courthouse between August 8, 2011, and September 2, 2011, and I report
20
the results of that analysis here. In general, my analysis showed exactly the
21
opposite of what CNS claims. The overwhelming bulk (more than 75%) of new
22
complaints were received, processed and sent to the Media Bin on the same or next
23
day.
24
5.
I conducted my analysis by first performing searches within our Court
25
Case Management System (“CCMS”) to locate all the unlimited general civil cases
26
that were filed by the Ventura Superior Court at the Hall of Justice courthouse on
27
each court day during the relevant period. That search generated the following type
28
of exemplar screen shot:
-1-
Declaration of Julie Camacho ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 30
Case 2:11-cv-08083-R -MAN Document 25-1
#:534
Filed 10/31/11 Page 3 of 16 Page ID
1
2
3
4
5
6
7
8
9
10
11
12
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17
A full-page copy of this exemplar screen shot is attached hereto as Exhibit A.
6.
18
19
20
21
22
23
24
25
26
27
28
I then reviewed the list of cases filed on each court day to determine
which were new unlimited general civil complaints. I crossed through those
complaints that were not new unlimited general civil complaints as these types of
cases are filings that do not go to the Media Bin; I put a check mark next those that
were.
7.
For each new unlimited general civil complaint, I reviewed the CCMS
Records Management—Location History screen for the matter. That screen shows
the location of the case file at any particular point in time following its processing
date. For example, the attached screen shot shows the Location History page for
City National Bank v. Star Marketing & Media Inc., one of the unlimited general
civil complaints filed on August 8, 2011:
-2-
Declaration of Julie Camacho ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 31
Case 2:11-cv-08083-R -MAN Document 25-1
#:535
Filed 10/31/11 Page 4 of 16 Page ID
1
2
3
4
5
6
7
8
9
10
11
12
13
14
A full-page copy of this screen shot of the Location History page for City National
15
Bank v. Star Marketing & Media Inc. is attached hereto as Exhibit B.
16
8.
The type-written notes at the bottom of the screen shot are notes I
17
inputted as I evaluated the date on which each case was received, processed, and
18
sent to the Media Bin.
19
9.
Every new complaint received by Ventura Superior Court that is
20
dropped off or received by overnight delivery is deemed filed on the date it was
21
received, and may be “backdated” accordingly. Thus, for all backdated filings, the
22
“Filing Date” in the upper-right-hand corner of the Case Header box reflects not
23
only the date on which the document was deemed filed, but also the date it was
24
received.
25
10.
The entries below the Case Header box reflect the Location History for
26
that particular file on any given date after it has been processed and entered into
27
CCMS.
28
-3-
Declaration of Julie Camacho ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 32
Case 2:11-cv-08083-R -MAN Document 25-1
#:536
1
11.
Filed 10/31/11 Page 5 of 16 Page ID
As the above screen shot shows, City National Bank v. Star Marketing
2
& Media Inc. was received and filed on August 8, 2011. It was processed and sent
3
to the Media Bin on August 8, 2011—the same day it was received. In accordance
4
with our standard practice, the file remained in the Media Bin in the Records
5
Department for ten days and was then removed from the Media Bin and shelved in
6
Records.
7
12.
For each case that was filed but not sent to the Media Bin on the same
8
day, I reviewed the Case History screen in CCMS to determine when the file was
9
processed. For example, the following screen shot shows the Location History
10
page for Power Gomez v. LaCouture, a case that was received and deemed filed on
11
August 8, 2011, but was not sent to the Media Bin until August 9, 2011:
12
13
14
15
16
17
18
19
20
21
22
A full-page copy of this screen shot of the Location History page for Power Gomez
23
v. LaCouture is attached hereto as Exhibit C.
24
13.
The Case History screen in the system shows even more detail,
25
including each document that was processed along with the new complaint. Thus,
26
for Power Gomez v. LaCouture, a complaint, declaration for court assignment, and
27
civil case cover sheet were processed as part of the initial filing of the complaint.
28
Because the complaint was received on August 8, all documents have a filed date of
-4-
Declaration of Julie Camacho ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 33
Case 2:11-cv-08083-R -MAN Document 25-1
#:537
Filed 10/31/11 Page 6 of 16 Page ID
1
August 8 as well. However, by placing my cursor over the person icon on the
2
screen I am able to determine that the documents were backdated. A small box
3
opens up to show the actual date and time the documents were processed, not just
4
the date they were deemed filed:
5
6
7
8
9
10
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12
13
14
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A full-page copy of this screen shot for Power Gomez v. LaCouture is attached
hereto as Exhibit D.
14.
All the documents for the Power Gomez v. LaCouture file were
processed on August 9, 2011, at 8:16 a.m.—essentially the first thing the next
morning after it was received. And as the prior screen shot shows, the file was sent
to the Media Bin that same day.
15.
I conducted an identical analysis for all new unlimited general civil
complaints filed on all court days between August 8, 2011, and September 2, 2011.
My analysis revealed that 147 new unlimited general civil complaints were filed by
Ventura Superior Court during that time.
16.
Of those 147 new unlimited general civil complaints, 47 of them were
received, processed and placed in the Media Bin all on the same day.
17.
Fifty-four (54) of them were received on one day and processed and
placed in the Media Bin on the next day.
18.
Another 18 of them were processed and placed in the Media Bin
within two days of receipt.
28
-5-
Declaration of Julie Camacho ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 34
Case 2:11-cv-08083-R -MAN Document 25-1
#:538
1
19.
Filed 10/31/11 Page 7 of 16 Page ID
Seventeen (17) of the 147 new unlimited general civil complaints
2
needed to be directed to a judicial officer immediately, or were transferred in from a
3
Superior Court in another county.
4
5
6
20.
Seven (7) of them did not get placed in the Media Bin due to an
inadvertent clerical error.
21.
Of the remaining four (4) files, three filings were backdated five (5)
7
days and one filing was backdated 10 days. These files had delays that were due
8
either to being received and couriered from the Simi Valley branch, or from an
9
anomaly in processing that cannot be tracked through CCMS or independently
10
recalled by the CPAs who processed the filings. Given the hundreds of documents
11
our CPAs must process by hand each day, this is not surprising. Those remaining
12
files, however, did eventually make it to the Media Bin.
13
22.
I further understand that CNS has complained in the past about four
14
specific case files and alleged delays of access to each ranging from eight to 13
15
days. I have researched those files through the information available in CCMS and
16
have determined the following:
17
(a)
Estrada v. Rubio’s Restaurant, Inc., Case No. 56-2010-
18
00387332: This case was received, processed into CCMS, and deemed filed all on
19
December 20, 2010, and then sent to the Media Bin that same day.
20
(b)
Berber v. Holiday Retirement, Case No. 56-2010-00387945:
21
This case was received and deemed filed on December 28, 2010, and was processed
22
into CCMS on January 4, 2011. The file was sent to the Media Bin the same day it
23
was processed. The delay in processing likely was due to the intervening New
24
Year’s Holiday.
25
(c)
Harrison v. Rite Aide Corp., Case No. 56-2010-00387942: This
26
case was received and deemed filed on December 28, 2010, and was processed into
27
CCMS on January 4, 2011. The file was sent to the Media Bin the same day it was
28
-6-
Declaration of Julie Camacho ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 35
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Robert A. Naeve (State Bar No. 106095)
rnaeve@jonesday.com
Erica L. Reilley (State Bar No. 211615)
elreilley@jonesday.com
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, CA 92612
Telephone: (949) 851-3939
Facsimile: (949) 553-7539
Attorneys for Defendant
MICHAEL PLANET, IN HIS OFFICIAL
CAPACITY AS COURT EXECUTIVE
OFFICER/CLERK OF THE VENTURA
COUNTY SUPERIOR COURT
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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Case No. CV11-08083 R (MANx)
COURTHOUSE NEWS SERVICE,
Assigned for all purposes to
Hon. Manuel L. Real
Plaintiff,
v.
DECLARATION OF CHERYL
KANATZAR IN SUPPORT OF
DEFENDANT’S OPPOSITION
TO PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION
MICHAEL PLANET, IN HIS
OFFICIAL CAPACITY AS COURT
EXECUTIVE OFFICER/CLERK OF
THE VENTURA COUNTY
SUPERIOR COURT,
Date:
November 21, 2011
Time:
10:00 a.m.
Courtroom: 8
Defendant.
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I, CHERYL KANATZAR, declare and state as follows:
1.
I am employed as a Deputy Executive Officer of the Superior Court of
California, County of Ventura (“Ventura Superior Court” or “Superior Court”). I
am responsible for the overall administrative operations of the Superior Court in the
areas of court processing and courtroom operations. As is relevant to this lawsuit,
“court processing” includes processing of, and access to, all filings with the
Ventura Superior Court, including those filings at the Hall of Justice facility, the
Court’s primary location. In addition, I was responsible for overseeing the
management of all of the Court Processing Assistants (“CPAs”) who work in the
Civil Department of the Superior Court’s Clerk’s Office, including the CPAs who
are assigned to work the public filing windows, the new filings desks, and the
Records and Exhibits Departments. I have personal knowledge of the facts stated
in this Declaration, and I could and would competently and truthfully testify to
these facts if called upon to do so.
2.
It is my understanding that Courthouse News Service (“CNS”) claims
in this action that Ventura Superior Court can and should provide “same-day
access” to newly filed civil unlimited complaints. I provide this declaration to
explain why it is not possible for the Superior Court to provide same-day access.
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A.
Civil Clerk’s Office Staffing And Caseload Generally.
3.
By way of background, Ventura Superior Court’s Civil Department
operates out of two locations, its Hall of Justice Center in Ventura, and its Simi
Valley location. CNS has not insisted on a right of same-day access to newly filed
complaints filed with our Simi Valley court; this declaration will deal only with the
filings at the Hall of Justice facility.
4.
Ventura Superior Court does not maintain filings in electronic format,
and does not require litigants to submit motions, orders and other filings through an
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online filing system like the federal courts’ Pacer system. Instead, Ventura
Superior Court maintains only standard physical files for all actions pending in the
County of Ventura. Litigants must physically file paper copies of their documents.
They can do so either by depositing them with CPAs in our Civil Department as
described elsewhere in this Declaration, or by faxing or emailing their documents to
the Civil Department, where a CPA must then generate paper documents for our
files. Therefore, unlike the clerk’s office in federal and other electronic filing
courts, the clerk’s office in the Ventura Superior Court is burdened by the
substantial additional administrative task imposed by the need to process by hand
every document filed with the court.
5.
According to our Court Case Management System (“CCMS”), which
maintains our docket of court filings as well as our court calendars, the CPAs in the
civil clerk’s office are responsible for receiving, filing and processing in excess of
151,000 separate filings each year:
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2008 Civil Filings
151,281
2010 Civil Filings
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144,184
2009 Civil Filings
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151,203
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6.
The Superior Court currently employs 14 CPAs in the Civil
Department, plus one Civil Department supervisor, to handle all of these filings.
Each of the CPAs is responsible for a particular function or “desk” in the Civil
Department, including the answers and motions, arbitration, fax filings, judgments,
mandatory early settlement conference assignments, motions, new filings and
orders, as well as public filing windows 7, 8, 9, 10 and 11.
7.
The workload carried by each of our CPAs is very heavy. By way of
example only, Jessica Brown is the CPA III currently responsible for our
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Mandatory Early Settlement Conference Desk. Despite what the name might
imply, Ms. Brown is responsible for a very high volume of filings that must be
processed on a daily basis. During a typical day, she is responsible for reviewing
and scheduling appropriate case management hearings for approximately 4 to 5
amended complaints, 7 to 8 notices of settlement and 3 to 4 amendments to
complaints. In addition, she is responsible for receiving, processing and inputting
into CCMS 4 to 5 substitution of attorney / notice of change of address forms per
day. Ms. Brown is also responsible for reviewing and scheduling for hearing
petitions for de novo review of wage and hour decisions by the California Division
of Labor Standards Enforcement; for processing Notices of Removal to federal
court; for making settlement officer assignments; and for scheduling settlement
hearings before the settlement officer. She also reviews and schedules in CCMS
follow-up calendars for cases transferred to Ventura Superior Court from other
courts as well as case consolidations ordered by judges of the Superior Court. She
also reviews files in which a proof of service of a new complaint, or status
conference reports, or post-settlement dismissals have not been timely filed, and
schedules OSC hearings in cases in which the appropriate documents have not been
filed by the parties. In addition to these tasks, she is responsible for mailing from
60 to 70 notices and other forms to be served on litigants; for working at one of the
public filing windows for several hours each day; and for answering telephones for
at least an hour per day.
8.
The workloads of the remaining CPAs in the Civil Department are
equally heavy, and will likely increase in the coming year. As explained in the
Notice of Change in Processing of Civil Filings attached to this Declaration as
Exhibit “A,” effective October 11, 2011, CPAs in our Hall of Justice facility in
Ventura assumed responsibility for processing “case initiating papers, including
complaints” for cases filed in our East County courthouse located in Simi Valley:
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We transferred responsibilities for new case filings to the Hall of
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Justice facility because reduced staffing at the Simi Valley Courthouse made it
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difficult to process work in a timely manner.
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It is possible that further changes to CPA job responsibilities will be
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implemented in 2012. As explained in the Public Notice of Request for Public
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Input attached to this Declaration as Exhibit “B,” the Superior Court is now
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considering whether to relocate the civil courtrooms located in Simi Valley to the
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Hall of Justice facility in Ventura:
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If this relocation takes effect, it will increase the workload of our Civil Department
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CPAs.
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The workload carried by our CPAs has been made even heavier as the
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result of budgetary shortfalls experienced by the State of California generally and
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the Ventura Superior Court in particular. These budgetary shortfalls have resulted
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in mandatory furlough days for our CPAs, as well as a hiring freeze, which
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effectively prevents us from hiring new CPAs in the clerk’s office when existing
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CPAs retire or quit. As of the end of September 2011, Ventura Superior Court had
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no fewer than 42 vacancies for full-time staff positions. 22 of these vacancies arise
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in my areas of responsibility; four occurred within the civil processing Civil
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Department and another four occurred in the Records Department.
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This reduction in staffing levels necessitated a number of changes in
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the business operations of the clerk’s office. First, we reduced the public business
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hours for the clerk’s office effective July 1, 2009. As can be seen from this excerpt
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from the July 1, 2009 memorandum issued to all staff in the clerk’s office, which I
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approved, the public and telephone hours were reduced so that the doors to the
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clerk’s office would be closed at 4:00 p.m., rather than 5:00 p.m.:
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A complete copy of this July 1, 2009 memorandum is attached to this Declaration
as Exhibit “C.”
13.
To accommodate the change in office hours with the need to accept
filings before 5:00 p.m., the Ventura Superior Court installed a secure drop box
near the clerk’s office on the second floor of the Hall of Justice facility. Civil and
family law filings can be deposited in the drop box for same-day filing at any time
prior to 5:00 p.m. Staff from the Family Law Department or the Civil Department
retrieve documents from the drop box twice each day, at 4:30 p.m. and 5:00 p.m.
Documents retrieved from the drop box are date-stamped “Received” on the back
of the first page, and are then distributed to the appropriate back office CPA for
processing. Dropped documents, including new complaints, are deemed filed on
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the day they are stamped received. If the documents are processed the next day, our
CPAs are instructed to back-date the file stamp to properly reflect the date upon
which the document is deemed filed.
14.
To further accommodate reduced staffing levels in the clerk’s office,
the Ventura Superior Court changed the procedure by which new complaints are
accepted for filing. The Civil Department receives approximately 8 civil unlimited
complaints, along with literally hundreds of other documents, including answers,
motions and notices of various types, on a daily basis. Prior to June 2010, most of
these complaints were received by CPAs at the public filing windows, who were
responsible for fully opening new files and for issuing summons and related
documents upon receipt. However, the practice of creating new files upon receipt
of complaints at the filing window became increasingly unworkable because of the
small number of open clerk windows; the increasing line of customers waiting for
those windows; the advent of the CCMS filing system, which requires our CPAs to
enter considerably more information regarding a new complaint before a file
number can be generated; the reduction in the number of CPAs available to staff the
public filing windows; and the reduction of hours the clerk’s office could remain
open in light of current budget constraints.
15.
Accordingly, Ventura Superior Court implemented a change to its
filing system effective June 21, 2010. As explained in the following excerpt from
our May 19, 2010 Notice of Counter Filing Changes, which I approved, most new
complaints could only be “dropped off” at the public filing windows, so that they
could be processed by back-counter CPAs:
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A complete copy of our May 19, 2010 notice is attached to this Declaration as
Exhibit “D.”
16.
Under this change in procedure, new complaints are date-stamped
“Received” at the public filing window, and given to a behind-the-counter new
filings desk CPA, who is responsible for opening a new file, issuing a case number,
and providing conformed copies to counsel. As is the case with documents
retrieved from the drop box, new complaints received at the public filing window
are deemed filed on the date they are stamped received. If they are received late in
the day and processed at a later time, the new filings desk CPA is instructed to
back-date the file stamp to properly reflect the date upon which the document is
deemed filed.
17.
This change in procedure allowed the clerk’s office to prioritize work
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based on the needs of our public customers and bench officers. From the Superior
Court’s standpoint, most 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. Hence, receiving “dropped”
complaints at the public filing window for later processing the same day, allows our
limited staff to deal with other customers waiting in line at the civil filing windows,
and to deal with other pressing issues, including ex parte applications, and other
time sensitive matters.
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B.
CNS’s Demand For “Same-Day Access.”
18.
As a practical matter, CNS’s reporter is the only “reporter” who asks
to see our new case files. The Superior Court only infrequently receives requests
from other reporters for access to case files or new complaints. As is the case with
CNS, we grant other reporters the same access we provide to members of the
general public.
19.
It is my understanding that, prior to November 2010, CNS’s reporter,
Juliana Krolak, only visited our clerk’s office on roughly a weekly basis. In the
2008 – 2009 time period, Ms. Krolak occasionally complained that she could not
locate particular case files that should have been placed in the Media Bin in our
Records Department. We worked with Ms. Krolak and her supervisor, Chris
Marshall, to determine why some files were not being deposited in the Media Bin,
and took steps to ensure that new files were first placed in our Media Bin where
they would remain for approximately one week before being placed in our shelves
for filing.
20.
On or about July 23, 2009, I received the following letter from Mr.
Marshall which confirmed our efforts to route new complaints to the Media Bin:
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A complete copy of this letter is attached to this Declaration as Exhibit “E.”
21.
It is my understanding that CNS alleges in its complaint that the
Superior Court somehow agreed to an “arrangement” by which “newly filed
complaints were to be made available to Courthouse News’ reporter after some
processing but before the complaints had been fully processed, the result of which
was that access became much more timely.” This allegation is not correct. As
noted above, Ventura Superior Court took steps to ensure that fully processed
complaints were timely deposited in the Records Department Media Bin. For
reasons that will be detailed below, it has never been our practice to grant access to
“partially processed” complaints.
22.
I received another letter from Mr. Marshall more than a year later on
February 7, 2011. Mr. Marshall notified me for the first time in this letter that Ms.
Krolak had been visiting the Superior Court’s Records Department on a daily basis
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since November 2010; that CNS hoped that she could review newly filed
complaints on the on the same day they were filed; but that Ms. Krolak had
experienced delays:
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A copy of Mr. Marshall’s February 7, 2011 letter without exhibits is attached to this
Declaration as Exhibit “F.”
23.
I discussed Mr. Marshall’s letter with Julie Camacho, the Court
Program Manager responsible for CPAs working in the Department. In response,
we issued the following February 17, 2011 email which directs Civil Department
CPAs to make every effort to complete their filings and get them to the Records
Department Media Bin in a timely fashion:
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A complete copy of the February 17, 2011 email is attached to this Declaration as
Exhibit “G.”
24.
I spoke with Mr. Marshall by telephone sometime in March 2011
about his February 7, 2011 letter. He explained that Ms. Krolak now visited the
Records Department every day, and said that she needed “same-day access.” He
explained that CNS had obtained same-day access from other courts in California,
as demonstrated by the attachment to his letter. He also said that he just needed
access to electronic copies of new complaints, and that, in other courts, CNS
“reporters” could go to a computer terminal and review new complaints on line.
25.
In response, I explained to Mr. Marshall that Ventura Superior Court
was not an electronic filing court like most of the courts identified in his letter; that
we did not image Superior Court filings; that we did not accept any type of efilings; that our filing system was not automated as is the case with the federal court
Pacer system; and that we still manually enter each document into physical files.
Mr. Marshall nonetheless insisted that Ms. Krolak be given access to new
complaints the same day as they were filed.
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After speaking with the Superior Court’s staff, including Ms.
Camacho, I spoke to Mr. Marshall again by telephone several days later. I told him
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that we would do what we could to get newly filed complaints to the Media Bin as
fast as possible; that, if we are able to process new complaints early in the day, we
would put them in the Media Bin on the same day; but that we would otherwise do
our best to process new complaints and deposit them in the Media Bin on the day
after they had been filed. Mr. Marshall said that he and his attorneys would not be
happy with this response.
27.
As a result of these communications with Mr. Marshall, I worked with
Julie Camacho to reprioritize the procedures by which newly filed complaints are
processed and made available to the public in the Superior Court’s Media Bin,
which is located in our Records Department. As explained in the following excerpt
from Ms. Camacho’s March 15, 2011 email to Maria Ochoa, the CPA then assigned
to the new filings desk, we asked Maria to give “the highest priority” to processing
new civil unlimited complaints, so that there could be a two-day turnaround
between the date a new complaint is filed, and the date the newly filed complaint
would be deposited in the Media Bin for public review:
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A complete copy of our March 15, 2011 email is attached to this Declaration as
Exhibit “H.”
28.
While we cannot guarantee a two-day turnaround to the Media Bin in
all cases for the reasons explained below, Ms. Camacho’s March 15, 2011 email
confirms our current practice with respect to filing of, and access to, newly filed
civil unlimited complaints.
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It Is Not Possible For Ventura Superior Court To Provide “SameDay Access” To Newly Filed Civil Unlimited Complaints.
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Since at least March 2011, Ventura Superior Court has given “the
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highest priority” to filing civil unlimited complaints so that they can be forwarded
to the Media Bin in the Records Department for public review. Indeed, in
approximately August of this year, we obtained an exception from the courtwide
hiring freeze in order to hire a new CPA in the Civil Department, and we then
assigned a second CPA to the new filings desk. The “first priority” of this second
CPA is to identify and process newly filed civil unlimited complaints.
30.
It is my understanding that CNS remains unsatisfied with the speed by
which newly filed civil unlimited complaints are processed and routed to the Media
Bin in the Records Department for review. However, from my perspective as
Deputy Executive Officer of the Superior Court, it is not possible to guarantee
“same-day access” to newly filed civil unlimited complaints for at least the
following reasons.
31.
First, it is important to note that newly filed civil unlimited complaints
can be “dropped” with the Superior Court for filing in a number of different ways.
For example, newly filed complaints can be dropped for filing: (a) with a CPA at
the public filing windows in the clerk’s office, as described above; (b) in the after
hours drop box described above, which is only accessed at 4:30 and 5:00 p.m. each
day; (c) by messenger services that deliver a number of filings for a number of
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cases in bulk to unattended Window 14, usually in the afternoon; (d) by mail, which
is delivered to the new filings desk twice daily; and (e) via “fax filing” and “email
filing,” by which new complaints are received electronically, and are thereafter
printed and processed by the assigned CPA. In addition, civil unlimited complaints
that are dropped for filing at the Simi Valley Courthouse are retrieved and delivered
to the new filings desk once a day by a Superior Court courier. As explained
above, new civil unlimited complaints that are “dropped” in any of these locations
are marked “received” on the date they are delivered. However, delivery of these
complaints to the new filings desk can be delayed by a day or more (in the event of
an intervening weekend) if they are “dropped” late in the day, or not delivered to
the new filings desk until later that day or early the next morning. The Superior
Court has no control over the timing by which new complaints are “dropped” for
filing, and cannot guarantee same-day access to these complaints for that reason.
32.
Second, furloughs and court closures necessitated by our budgetary
shortfalls also preclude the Ventura Superior Court from guaranteeing “same-day
access” to newly filed civil unlimited complaints. As explained in the Superior
Court’s September 22, 2011 press release attached to this Declaration as Exhibit
“I,” the Superior Court’s Clerk’s Office will be closed to the public on “November
23, 2011, December 23, 27, 28, 29 and 30, 2011 to mitigate the impact of additional
unpaid employee furlough days on court operations.” However, newly filed
complaints can still be deposited in the Superior Court’s drop box, and as explained
elsewhere in this Declaration, they will be deemed filed as of the date they are
stamped “received.” However, it will not be possible to grant “same-day access” to
these newly filed complaints when the Superior Court’s Clerk’s Office is closed.
33.
Second, it is not possible to guarantee “same-day access” to
complaints that are immediately assigned to judicial officers. This category
includes cases in which plaintiffs simultaneously file complaints and ex parte
28
- 16 -
Declaration of Cheryl Kanatzar ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 60
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 17 of 43 Page ID
#:564
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applications for temporary restraining orders; complaints for which plaintiffs seek
fee waivers which must be approved by a judicial officer before the complaint can
be accepted for processing; and complaints filed on behalf of minors by guardians
ad litem, who must be appointed as guardians by a judicial officer before the
complaint can be accepted for processing. Newly filed civil unlimited complaints
that are immediately assigned to judicial officers may remain in chambers for
anywhere from one to several days or longer depending on whether the assigned
judicial officer needs to retain the file for further action. The Superior Court is not
in a position to guarantee same-day access to these files for this reason.
34.
Third, it is not possible to guarantee “same-day access” to newly filed
civil unlimited complaints that are processed by newly appointed CPAs. One of the
Superior Court’s highest responsibilities is to ensure and promote public trust and
confidence in the Court and its filings. The Superior Court cannot satisfy this
responsibility unless it ensures that its files are in good order, and are complete and
accurate. Hence, complaints that are processed by newly appointed CPAs are
subject to a quality control review in which new files are routed to Ms. Martha
McLaughlin, Court Program Supervisor II in charge of the Civil Department, who
is responsible for supervising Civil CPAs. It is not uncommon for new CPAs
improperly to process incomplete complaints that should be rejected; to improperly
enter crucial case data that would impair CCMS from properly tracking and
assigning the case; and to improperly enter contact information for attorneys.
These complaints are not ready for review, by the press or other members of the
general public. Instead, Ms. McLaughlin refers the complaint and its file back to
the newly hired CPA who must correct and resubmit the file for final review and
approval. Newly filed civil unlimited complaints are placed in the Media Bin in the
Records Department by Ms. McLaughlin only after they have been corrected and
approved. Once the file is approved, Ms. McLaughlin walks it to the Media Bin;
28
- 17 -
Declaration of Cheryl Kanatzar ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 61
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 18 of 43 Page ID
#:565
1
2
3
4
the new filings CPA then deals with conformed copies. This quality control
process could take from one to several days. The Superior Court is not in a position
to guarantee same-day access to complaints processed by newly appointed CPAs
for this reason.
5
6
D.
It Is Not Possible To Allow CNS Reporters “Behind The Counter”
To Review Newly Filed Complaints Before They Are Processed.
35.
It has been suggested that we could ensure more timely access to
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newly filed civil unlimited complaints by allowing Ms. Krolak to go “behind the
counter” in the Civil Department and to review dropped complaints that have not
been processed, filed and approved for public viewing. This suggestion is not
workable for a number of reasons.
36.
First, the Superior Court’s security procedures were tightened
considerably after the occurrence of a shooting incident involving an Employment
Development Department employee in Oxnard. The Superior Court’s current
policies prohibit members of the general public from accessing processing desks
where new civil unlimited complaints are maintained prior to processing.
37.
Second, the Superior Court cannot allow CNS or other members of the
public to review new civil unlimited complaints until they are filed to ensure that
the Court respects the privacy of litigants. For example, litigants who file fee
waiver requests must include personal financial information with their fee waiver
requests. These requests are kept with the complaints they accompany until after
they are assigned to a judicial officer and processed by a CPA. It would be
inappropriate to grant access to these confidential records.
38.
Allowing members of the public access to new complaints before they
are filed also violates the Superior Court’s accounting protocols. New complaints
cannot be processed or filed until the plaintiff or plaintiffs have paid the proper
filing fee. Filing fees usually are paid by check, which are attached to a new
- 18 -
Declaration of Cheryl Kanatzar ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 62
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 19 of 43 Page ID
#:566
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complaint until it is processed. The Superior Court requires CPAs to balance out
each day and has established strict cash handling and audit procedures to ensure
that moneys deposited with the Superior Court are secure. It is inconsistent with
these protocols and procedures to allow public access to those areas of the clerk’s
office, including the new filings desk, where filing fees are maintained.
39.
Quality control concerns also counsel against allowing the general
public to review new complaints before they are filed. As noted above, one of the
Superior Court’s highest responsibilities is to ensure and promote public trust and
confidence in the Court and its filings. The Superior Court does not satisfy this
responsibility by allowing access to new complaints that may be rejected for filing,
or that are in some way incomplete.
40.
Finally, but perhaps more importantly, it is my understanding that the
Superior Court’s current practice of granting access to civil unlimited complaints
after they have been processed and filed complies with California law. In
particular, it is my understanding that the Superior Court’s practice of granting
access to newly filed civil unlimited complaints once they are processed and placed
in the Records Department Media Bin complies with California Government Code
section 68150, which grants a right of “reasonable access” to “court records,”
which is defined by Government Code section 68151 to include, “[a]ll filed papers
and documents in the case folder, but if no case folder is created by the court, all
filed papers and documents that would have been in the case folder if one had been
created.”
41.
Similarly, it is my understanding that the Ventura Superior Court’s
practice is consistent with the provisions of California Rule of Court 2.400(a),
which provides that, “[o]nly the clerk may remove and replace records in the
court’s files,” and 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
28
- 19 -
Declaration of Cheryl Kanatzar ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 63
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 20 of 43 Page ID
#:567
1
clerk.”
2
3
4
E.
Summary.
42.
The Ventura Superior Court has not enacted a blanket policy against
5
granting same-day access to newly filed civil unlimited complaints. To the
6
contrary, the Superior Court recognizes the role the First Amendment plays in our
7
society, and does not and will not deny access to documents maintained in its
8
public files.
9
43.
In addition, the Superior Court has granted, and will continue to grant
10
“reasonable access” to its public files, including newly filed civil unlimited
11
complaints, to all members of the public, including the press. It is for these reasons
12
that we have made it our “highest priority” to process and file civil unlimited
13
complaints so that they can be forwarded to the Media Bin in the Records
14
Department for public review. However, given current staffing and financial
15
constraints, it is not possible or practical for the Superior Court to guarantee “same-
16
day access” to newly filed civil unlimited complaints as CNS demands.
17
44.
In this regard, I wholeheartedly agree with the statements of the
18
California Judicial Council when it explained its opposition to CNS’s proposed
19
“same-day access” legislation as follows:
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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 information,
that the filing is valid (e.g. it is accompanied by the appropriate filing fee and
is directed to the proper court), and to have sufficient information such that
the court can protect the accuracy and integrity of the record prior to its
release. These tasks are important functions of the court in its role as
custodian of these records, and the speed with which access is provided must
be reasonably balanced with these responsibilities. . . . On any given day the
volume of filings may be such that courts cannot satisfy both requirements if they perform the required screening, they will not be able to release records
on the day that they are received.
28
- 20 -
Declaration of Cheryl Kanatzar ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 64
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 21 of 43 Page ID
#:568
SER 65
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 22 of 43 Page ID
#:569
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EXHIBIT “A”
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Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 66
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 23 of 43 Page ID
#:570
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- 23 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 67
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 24 of 43 Page ID
#:571
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EXHIBIT “B”
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- 24 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 68
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 25 of 43 Page ID
#:572
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- 25 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 69
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 26 of 43 Page ID
#:573
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EXHIBIT “C”
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- 26 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 70
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 27 of 43 Page ID
#:574
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- 27 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 71
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 28 of 43 Page ID
#:575
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- 28 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 72
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 29 of 43 Page ID
#:576
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EXHIBIT “D”
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- 29 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 73
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 30 of 43 Page ID
#:577
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- 30 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 74
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 31 of 43 Page ID
#:578
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EXHIBIT “E”
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- 31 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 75
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 32 of 43 Page ID
#:579
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- 32 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 76
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 33 of 43 Page ID
#:580
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- 33 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 77
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 34 of 43 Page ID
#:581
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- 34 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 78
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 35 of 43 Page ID
#:582
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- 35 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 79
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 36 of 43 Page ID
#:583
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- 36 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 80
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 37 of 43 Page ID
#:584
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Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 81
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 38 of 43 Page ID
#:585
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- 38 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 82
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 39 of 43 Page ID
#:586
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EXHIBIT “H”
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- 39 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 83
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 40 of 43 Page ID
#:587
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- 40 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 84
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 41 of 43 Page ID
#:588
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- 41 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 85
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 42 of 43 Page ID
#:589
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- 42 -
Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 86
D
Case 2:11-cv-08083-R -MAN Document 25-2 Filed 10/31/11 Page 43 of 43 Page ID
#:590
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Exhibits To Kanatzar Declaration
Case No. CV 11-08083 R (MANx)
SER 87
D
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Robert A. Naeve (State Bar No. 106095)
rnaeve@jonesday.com
Erica L. Reilley (State Bar No. 211615)
elreilley@jonesday.com
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, CA 92612
Telephone: (949) 851-3939
Facsimile: (949) 553-7539
Attorneys for Defendant
MICHAEL PLANET, IN HIS OFFICIAL
CAPACITY AS COURT EXECUTIVE
OFFICER/CLERK OF THE VENTURA
COUNTY SUPERIOR COURT
10
UNITED STATES DISTRICT COURT
11
CENTRAL DISTRICT OF CALIFORNIA
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Case No. CV11-08083 R (MANx)
COURTHOUSE NEWS SERVICE,
Plaintiff,
Assigned for all purposes to
Hon. Manuel L. Real
v.
DECLARATION OF KAREN
DALTON-KOCH SUBMITTED
IN OPPOSITION TO MOTION
FOR PRELIMINARY
INJUNCTION
MICHAEL PLANET, IN HIS
OFFICIAL CAPACITY AS COURT
EXECUTIVE OFFICER/CLERK OF
THE VENTURA COUNTY
SUPERIOR COURT,
Date:
November 21, 2011
Time:
10:00 a.m.
Courtroom: 8
Defendant.
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-1-
Dalton Declaration ISO
Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)
SER 88
SER 89
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EXHIBIT “A”
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-3-
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 90
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-4-
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 91
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-5-
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 92
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-6-
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 93
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-7-
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 94
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-8-
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 95
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-9-
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 96
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- 10 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 97
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- 11 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 98
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11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 12 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 99
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 13 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 100
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 14 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 101
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 15 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 102
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 16 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 103
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 17 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 104
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 18 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 105
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 19 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 106
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 20 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 107
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 21 -
Exhibit “A” to Dalton Declaration
Case No. CV 11-08083 R (MANx)
SER 108
SER 109
SER 110
SER 111
SER 112
SER 113
EXHIBIT A
SER 114
Note: Any filled positions that are not occupied before this revision will appear on
this report.
Updated: 8/11/2008
Current Vacant
Position Position
Number Number
Vacated By
VACANCY REPORT
# of
Recruiting
Days
Date
Filled
# of Days
Filled
SUPERIOR COURT OF CALIFORNIA, COUNTY OF VENTURA
Date
# of Days Recruit
Vacant/O
Vacant
Date
pened
Recruitment
Status
Requisition#
Current Latest %
Eff Date
Hrly Rate
Incr
FTE
Budgeted
Annual
Salary
Court Reporters
Keri Griffith
Sarah Waters
Nan Richardson
Court Senior Interpreter
Court Judical Secretary
Court Processing Assistant I/II/III-Fixed
Term
Court Reporter - Intermittent
25649
24698
21151
25585
660
New Position
Roberto Curiel
Linda Evans
New Position
Jennifer ArroyoSamels
Jeannine Linder
04/20/08
03/21/08
03/22/08
12/05/07
07/26/08
08/09/08
1284
1314
1313
1421
1187
1173
1284
On Hold
On Hold
On Hold
On Hold
N/A
N/A
N/A
1186
N/A
EMT Review
EMT Review
EMT Review
EMT Review
EMT Review
EMT Review
2008-INT-062708-LEva
2007-CPA-120507-NNew
$16.96
$22.21
$36.87
3.50%
3.50%
3.00%
07/01/07
06/29/08
06/29/08
1.00
1.00
1.00
$35,277
$46,197
$76,690
$22.21
$35.32
3.50%
3.50%
4.00%
06/29/08
06/29/08
08/16/07
1.00
1.00
1.00
$46,197
$66,976
$73,466
COMMENTS
10/25/2011 16:21
Confidential
Jennifer Arroyo-Samels moved to regular position in Simi 8/10/08.
Jeannine's last day 6/25/2008.
Req to recruit recvd 12/5/07; open 2/21 close 3/6 written 3/19
& 3/20; standing 4 oral exams 5/20 & 5/21/08;
CRF received; recruitment to open ASAP. Linda's last day
3/21/2008.
Recruitment on HOLD until further notice. Roberto's last day
3/20/2008.
$18.98
Req to recruit rcvd 4/21/08. New position to replace the JA
position that got converted into Criminal Case Coordinator.
2008-CCO-061708-DLis
2008-JAS-042008-NNew
$32.20
04/20/08
RECRUIT
CRF recvd 6/20/08; open 7/11 close 8/8; written exam 8/22;
oral exam 9/3/08;Vacated by David Liston, 08/27/07, but
request to extend fixed term status rec'd 06/16/08
N/A
$39,478
1227
1.00
06/16/08
06/29/08
1521
$36,504
3.50%
08/27/07
$39,291
10
9
8
9456
9492
9536
9302
9302
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Robert Sherman
Robert Sherman
Robert Sherman
Records
Records
Civil
Records
Fiscal - Ventura
Collections - Simi
Collections - Simi
Peggy Yost
Peggy Yost
Julie Camacho
Peggy Yost
Tessie Bigornia
Richard Cabral
Richard Cabral
Court Student Aide
Court Processing Assistant I/II/III
Court Processing Assistant IV
Court Processing Assistant I/II/III
Court Student Aide
Court Processing Assistant - Fiscal I/II/III
Court Processing Assistant - Fiscal I/II/III
25587
00597
00690
TBD
00633
00635
00560
25545
08975
01887
Bonnie Nash
Consuelo Barron
New Position
Beatriz Hernandez
Sylvia Borrego
Kevin Quilantang
Kathy Flanagan
Merlene Givan
Demistra McCoy
Rachel Holder
Elia Haz
Joseph Magdaleno
David Liston
1.00
11
9492
22140
25651
1.00
12
9492
Richard Cabral
06/29/08
13
Criminal/Traffic
Collections
25552
Tonna Brodie
Civil - Simi
Judicial Support
Cecilia Isaac
Court Judicial Assistant I/II
Court Mediator/Investigator I/II
JOB TITLE
Tonna Brodie
Tonna Brodie
MANAGER
9405
Tonna Brodie
Court Interpreters
Sarah Waters
DEPARTMENT
1
9457
9406
Tonna Brodie
Judicial Assistants
Family Court Services
CEO/AEO/DEO
2
9520
Tonna Brodie
Tonna Brodie
Budget
Unit
3
9463
07/27/08
4
9408
1421
5
12/05/07
6
9305
$17.55
3.50%
06/29/08
14
Cheryl Kanatzar
00707
07/26/08
06/28/08
12/18/07
06/25/08
06/14/08
05/13/08
06/12/08
05/17/08
12/25/07
07/27/08
05/17/08
06/01/08
1215
1408
1218
1229
1257
1401
1186
1257
Robert Sherman
7
2008-CCO-061608-JMag
$17.55
3.50%
CRF recvd 6/20/08; current eligibility list; oral exams 7/16.
Joseph Magdaleno transferred to Ventura - 6/1/08.
RECRUIT
2008-CFA-061708-EHaz
3.50%
$19,240
$36,504
Rachel Holder transferred to Traffic - 7/27/08.
Req to recruit rcvd 1/16/08; candidate did not successfully
pass backgrd ck; current eligibility list.
CRF received 6/2/08; open 7/2 close 7/16; oral exams 7/31 &
8/1/08.
Carol Cano's last day 5/28/2008. Filled internally - Kathy
Flanagan transferring from Records 07/13/08
Kevin's last day 5/12/2008.
CRF has been recvd; current eligibility list; Wendy Vega
accepted job offer-bkgd ck in progress.
CRF rec'd 07/10/08
9427
Cheryl Kanatzar
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III
15
9352
Traffic Administration
Traffic School
Administration
Court Processing Assistant I/II/III
Kelly O'Dell
CRF recvd 6/20/08; current eligibility list; oral exams 7/16/08;
Tanya Taylor accepted job offer-bkgd ck in progress.
PENDING FILL
$17.55
1.00
1.00
$36,504
PER CHERYL, WAIT TO FILL; Req to recruit recvd 1/4/08.
$36,504
N/A
EMT Review
$18.89
06/29/08
1.00
$36,504
16
Cheryl Kanatzar
Peggy Yost
Kelly O'Dell
1.00
1227
N/A
RECRUIT
3.50%
1.00
$36,504
$18,252
9352
Peggy Yost
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III-Fixed
Term
06/29/08
06/16/08
N/A
RECRUIT
$9.25
$17.55
06/29/08
0.50
17
Records
Kelly O'Dell
3.50%
1242
1227
N/A
EMT Review
06/29/08
1.00
$19,240
On Hold
N/A
EMT Review
3.50%
06/29/08
1.00
$36,504
1379
N/A
3.50%
06/29/08
1.00
06/16/08
1210
N/A
$17.55
3.50%
06/29/08
06/29/08
01/16/08
On Hold
$17.55
3.50%
1.00
07/03/08
On Hold
PENDING FILL
$17.55
3.50%
Jury Services
12/18/07
1290
On Hold
On Hold
1186
2008-CPA-062708-SBor
EMT Review
EMT Review
Average
$17.55
$17.55
$9.25
3.50%
3.50%
06/29/08
06/29/08
1.00
1.00
1.00
$36,504
$36,504
$19,240
$36,504
2007-CPA-121807-NNew
EMT Review
$9.25
1231
N/A
EMT Review
$17.55
Cheryl Kanatzar
1297
2008-CPA-011608-DMcC
1261
1226
N/A
EMT Review
$17.55
Cheryl Kanatzar
Court Collection Officer I/II/III - Fixed Term
- 12 months
25600
On Hold
N/A
EMT Review
9492
06/17/08
1408
EMT Review
9525
2
4
16
0
0
On Hold
N/A
18
22
On Hold
HUMAN RESOURCES DEPARTMENT
Vacancy Report Updated 08-10-08.xls
Vanessa Davis' last day 8/22/08.
CRF recvd 7/10/08; Lolita Pasion transferred to JC eff.
6/29/2008. Filled internally - Connie Barron transferred from
Records to Criminal Traffic effective 6/29/2008
CRF recvd on 7/10/08; Retirement - Bonnie's last day
7/25/2008. CRF rec'd 07/10/08
Retirement - Willi's last day 7/25/2008
Rebekah's last day 5/12/2008.
GREEN - HR UPDATES
On Hold
19
Pending Fill
Recruit
EMT Review
Hold
Pending
0
N/A
Court Processing Assistant I/II/III
Court Student Aide
Totals Open
08/23/08
1181
Julie Camacho
Kelly O'Dell
Filled
07/26/08
08/01/08
Civil
Traffic Administration
Vanessa Davis
Willi Copeland
Rebekah Torres
Cheryl Kanatzar
Cheryl Kanatzar
714
08826
TBD
9456
9352
Positions being recruited for but will not be vacant until Incumbents is/are transferred or has separated.
9493
Tonna Brodie
Records - Simi
Keri Griffith
Court Processing Assistant I/II/III
25246
20
21
22
10/25/2011 4:22 PM
SER 115
EXHIBIT B
SER 116
MANAGER
Senior Systems Analyst-Apps
Deputy Executive Officer
Court Reporter
Supervisor I/II
Court Processing Assistant I/II/III
UNR
SEIU
SEIU
SEIU
UNR
SEIU
SEIU
SEIU
26108
00630
00613
08974
00688
09555
08976
25335
08622
00267
00678
New Position
New Position
New Position
Patty Beare
Ginger Foster
Elizabeth Zuber - Morales
Cecilia Sanchez
Laura Crockett (Cordero)
Amy Solis
Mark Brandl
Erika Sjoquist
Lisabeth Kozin
Sandi Hatmaker
Tonna Brodie
Erika Sjoquist
Richard Goldner
Deborah Hayes
05/12/11
05/12/11
05/12/11
05/12/11
03/20/11
10/31/10
05/01/11
05/01/11
02/28/09
07/23/11
07/02/11
4/17/10
08/06/11
01/09/10
167
167
167
167
220
360
178
178
970
95
116
557
81
655
08/23/11
08/23/11
08/23/11
08/23/11
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
64
64
64
64
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
On Hold
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
Frozen
Recruit
Hold
Hold
Hold
Hold
Hold
Hold
Hold
Hold
Hold
Frozen
Hold
Hold
Hold
Frozen
Hold
Hold
Frozen
Hold
Frozen
Hold
Recruit
Recruit
Recruit
PENDING FILL
Frozen
Frozen
Hold
Hold
Frozen
Recruit
Frozen
Frozen
Frozen
Hold
Frozen
Frozen
Frozen
Hold
$19.30
$19.41
$17.94
$17.94
$17.94
$17.94
$17.94
$17.94
$19.30
$17.94
$17.94
$17.94
$17.94
$17.94
$22.71
$22.71
$17.94
$17.94
$22.71
$19.30
$17.94
$22.71
$19.41
$19.41
$19.41
$19.41
$31.73
$20.57
$17.94
$17.94
$26.18
$20.80
$35.36
$37.98
$19.41
$29.50
$52.51
$37.98
$26.62
$17.94
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
2.25%
3.50%
2.25%
2.25%
2.25%
2.25%
n/a
3.50%
2.25%
2.25%
2.25%
3.50%
2.25%
2.25%
2.25%
Current Latest %
Hrly Rate
Incr
06/30/10
06/27/10
06/27/10
06/28/10
06/29/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/27/10
06/29/08
06/27/10
06/27/10
06/27/10
06/27/10
n/a
06/29/08
06/28/09
06/27/10
06/27/10
06/29/08
06/28/09
06/27/10
06/27/10
Eff Date
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
0.01
1.00
1.00
FTE
SUPERIOR COURT OF CALIFORNIA, COUNTY OF VENTURA
DEPARTMENT
Roger Janes
Michael Planet
Nan Richardson
Nan Richardson
Nan Richardson
SEIU
26175
New Position
53
21
570
1118
1103
1026
893
879
732
347
295
53
361
24
1140
1054
382
1018
123
934
81
1284
Recruitment
Status
10/25/11
Executive Office
Reporting Services
Jury Services
Jury Services
Victims Restition Tech II
Business Process Anaylst
Court Reporter
Court Collection Officer III
UNR
SEIU
SEIU
SEIU
SEIU
26176
09/03/11
10/05/11
04/04/10
10/03/08
10/18/08
01/03/09
05/16/09
05/30/09
10/24/09
11/13/10
01/04/11
09/03/11
10/30/10
10/02/11
09/11/08
12/06/08
10/9/10
01/11/09
06/25/11
04/05/09
08/06/11
04/20/08
# of Days
Filled
VACANCY REPORT
Information Technology
Richard Cabral
Roger Janes
Nan Richardson
Richard Cabral
SEIU
26177
Elia Ferguson
Lolita Pasion
Andeep Grewal
Jade Smith
Sierra Gonzalez
Consuelo Barron
Sylvia Watson
Roberta Del Toro
Diann Brodie
Ashley Banyard
Kristen Foote
Norine Martin
Ina Muckey
Leticia Espinoza
Olivia Garcia
Celia Flores
Lucy Jensen
Sherry Jacoby
Sharon McCarthy
Diane Eidecker
New Position
$22.71
$17.94
$17.94
$17.94
$35,214 Vacated: RIF
$47,237
$37,315
$37,315
$37,315
$40,144 Vacated: Mari Soto promoted to Systems Analyst - eff. 9/4/2011
$40,373
$37,315
$37,315
$37,315
$37,315
$37,315
$37,315
$40,144
$37,315
$37,315
$37,315
$37,315
$37,315
$47,237
$47,237
$37,315
$37,315
$47,237
$40,144
$37,315
$47,237
$40,373 Recruit: G. Thompson starts 11/01/11.
$65,998
$42,786
$37,315
$37,315
$54,454
$43,264
$73,549
$78,998
$40,373
$61,360
Date
Filled
Michael Planet
Pat Patterson
Pat Patterson
Pat Patterson
Information Technology
Reporting Services
Coll-Delinquent - VTA
SEIU
UNIT
Vacated By
Pat Patterson
Coll-Non-Delqnt - VTA
Senior Accountant
Accounting Technician I/II
Court Processing Asst - Fiscal I/II/III
Court Processing Asst - Fiscal I/II/III
Accountant I/II/III
JOB TITLE
10/24/2011
9531
9405
9525
9525
Pat Patterson
Pat Patterson
Robert Sherman
Court Collections Officer I/II/III - FT
SEIU
Mari Soto
Date
# of Days Recruit
Vacant/O
Vacant
Date
pened
07/16/11
102
10/14/11
12
08/06/11
81
01/09/10
655
Note: Any filled positions that are not occupied before this revision will appear on this report.
9560
Robert Sherman
Patty Beare
Court Collections Officer I/II/III - FT
SEIU
Vacant
Position
Number
00638
24194
22141
00716
Current
Position
Number
1
2
3
4
9560
9405
9301
Richard Cabral
Court Collections Officer I/II/III - FT
8683
23430
10032
22355
00674
22356
08757
23073
00579
00588
08774
21657
22354
22353
00748
00661
00669
00757
00655
00634
00733
25649
$16.93
Budget
CEO/AEO/DEO
Unit
5
9303
Fiscal - VTA
Fiscal - VTA
Coll-Delinquent - VTA
Coll-Delinquent - VTA
Fiscal - VTA
Richard Cabral
Court Collections Officer I/II/III - FT
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
SEIU
Frozen
Frozen
Frozen
Frozen
39
19
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
18
17
9456
9302
9429
9427
9427
9427
9441
9427
9427
9427
9456
9456
9461
9457
9408
9406
9442
9493
9406
9428
9457
9408
9301
9301
Cheryl Kanatzar
Robert Sherman
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
25738
Budgeted
Annual COMMENTS
Salary
$109,221
$790
$55,370
$37,315
6
7
8
Coll-Delinquent - VTA
Richard Cabral
SEIU
Frozen
# of
Recruiting
Days
On Hold
9
Robert Sherman
Robert Sherman
Robert Sherman
Robert Sherman
Robert Sherman
Coll-Delinquent - VTA
Richard Cabral
Collections Officer III
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III
Court Processing Assistant IV
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III
Court Judicial Assistant I/II
Judical Secretary
Court Processing Assistant I/II/III
Court Processing Assistant I/II/III
Judicial Secretary
Court Processing Assistant IV
Court Processing Assistant III
Judicial Assistant I/II
N/A
N/A
N/A
N/A
$37,315
$66,976
$18,658
$97,989
$44,554
Confidential
Vacancy Report Updated 10-23-11_1.xlsx
Vacated: Don Shelton retired - last day 6/24/2011.
Held for Fixed term Mediator- to remain open for FY 10-11
Vacated: Split position control number 10033 (S. Marquez).
Held: Temp PCN 25909 filled by Linda Paavola 4/05/10.
Vacated: Myriam resigned 10/2/09.
Vacated: Roberta will retire - last day 9/16/2011.
Vacated: Lucy resigned - last day 9/15/2011.
Vacated: RIF
Vacated: RIF
Recruit: Open 8/23; written exam continuous; oral exam
$40,373
continuous. FT positions to backfill furloughed staff
Recruit: Open 8/23; written exam continuous; oral exam continous.
$40,373
FT positions to backfill furloughed staff
Recruit: Open 8/23; written exam continous; oral exam continuous.
$40,373
FT positions to backfill furloughed staff
Vacated: E. Ferguson last day 10/05/11
Held for V4 Backfill PCN 26074
Held for V4 Backfill PCN 26076
Held for CCS (M. Tosch) - to remain open for FY 10-11
Held for CCS (G. O'Bannon) - to remain open for FY 10-11
Held for CCS (O. Castaneda) - to remain open for FY 10-11
Held for CCS (K. Gonzales) - to remain open for FY 10-11
Held for V4 Backfill
Held for CCS (R. Cullen) - to remain open for FY 10-11
Held for V4 Backfill PCN 26084
Vacated: Kristen transferred to Appeals - PC#692
Held for V4 Backfill PCN 26075
Held for V4 Backfill PCN 26095 - Ina transferred to Records
Held for V4 Backfill PCN 26093
Vacated: Olivia Garcia
Held for CCS (L. Garza) - to remain open for FY 10-11
Held for CCS (S. Keith) - to remain open for FY 10-11
Vacated: Sherry retired - last day 6/24/2011.
Held for CCS (R. Landin) - to remain open for FY 10-11
Vacated: Diane resigned - last day 8/5/2011.
Held for V4 Backfill PCN 26094
Vacated: Tonna retired - last day 7/15/2011.
Vacated: RIF
Vacated: Richard resigned - last day 8/5/2011
Held for V4 Backfill PCN 26071
Held for V4 Backfill PCN 26106. Temporarily filled by M. Soto, eff
09/04/11
Vacated: Mark retired- last day 7/1/2011.
Vacated:
Vacated: Lisabeth transferred to Civil 8/7/2011
Recruit: open 09/28 close 10/18; oral exam TBD. A. Solis promoted
to Supervisor- Coll 7/24/2011.
Vacated: Patty Beare promoted to Fiscal Director - 03/20/11
Vacated: Ginger retired- last day 10/31/2010.
Held: Liz has been temporarily promoted to VRT for 90 days
Held: C. Sanchez temporarily promoted to VRT for 90 days
Vacated: Laura's last day was 2/27/09.
9536
9536
9301
9301
9536
Robert Sherman
Coll-Delinquent - VTA
Court Processing Assistant IV
N/A
Patty Beare
Patty Beare
Richard Cabral
10
11
12
13
14
9301
Robert Sherman
Coll-Delinquent - VTA
Julie Camacho
Richard Cabral
Patti Morua-Widdows
Kelly O'Dell
Kelly O'Dell
Kelly O'Dell
Kelly O'Dell
Kelly O'Dell
Kelly O'Dell
Kelly O'Dell
Julie Camacho
Julie Camacho
Irene Lopez
Keri Griffith
Sarah Waters
Sarah Waters
Keri Griffith
Keri Griffith
Sarah Waters
Keri Griffith
Keri Griffith
Sarah Waters
On Hold
On Hold
On Hold
On Hold
A08976
26110
15
9301
Robert Sherman
Coll-Delinquent - EC
Traffic & Other Infrac - JC
Traffic/Other Infrac - VTA
Traffic/Other Infrac - VTA
Traffic/Other Infrac - VTA
Other Criminal - VTA
Traffic/Other Infrac - VTA
Traffic/Other Infrac - VTA
Traffic/Other Infrac - VTA
Civil - VTA
Civil - VTA
Families and Children - VTA
Civil - EC
Judicial Assistants - VTA
Secretarial Support - VTA
Other Criminal - EC
Records - EC
Secretarial Support - VTA
Traffic/Other Infrac - EC
Civil - EC
Judicial Assistants - VTA
On Hold
16
Robert Sherman
Civil - VTA
12
39
40
12
12
1.00
1.00
0.50
1.00
1.00
48.51
10/14/11
06/27/10
06/29/08
06/27/10
06/27/10
06/27/10
09/17/11
09/16/11
10/14/11
10/14/11
2.25%
3.50%
2.25%
2.25%
2.25%
Roberta Martin
Lucy Jensen
Jerry Ricardez
Janet Falat
$17.94
$32.20
$17.94
$47.11
$21.42
Dana Meizel
Frozen
Hold
Frozen
Hold
Frozen
24691
N/A
N/A
N/A
N/A
N/A
00594
00719
25558
25195
On Hold
On Hold
On Hold
On Hold
On Hold
SEIU
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
Cheryl Kanatzar
123
942
514
655
753
SEIU
SEIU
SEIU
SEIU
Cheryl Kanatzar
06/25/11
03/28/09
05/30/10
01/09/10
10/03/09
Child Care Coordinator III
9408
9428
9461
9493
STATUS
Don Shelton
Deborah Corey
New Position
Lidia Almaguer
Myriam Bianco
Judicial Assistant I
Court Processing Assistant I/II/III
Court Processing Assistant III
Court Processing Assistant I
9501
25909
00603
22577
25926
22148
00713
Sarah Waters
Keri Griffith
Irene Lopez
Keri Griffith
40
41
42
43
Brenda McCormick
Brenda McCormick
Brenda McCormick
Brenda McCormick
Brenda McCormick
48.51
1.00
5.00
20.51
22.00
UNR
SEIU
ATT
Total
Pending Fill
Recruit
Frozen
Hold
HUMAN RESOURCES DEPARTMENT
48.51
4.00
43.51
1.00
SEIU
UNR
SEIU
ATT
SEIU
Keri Griffith
44
9492
9463
9492
9466
9465
48.51 Total
26.00
45
46
47
48
49
Cheryl Kanatzar
Peggy Yost
Court Processing Assistant III
Robert Bayer
Mediator/Investigator I/II
Peggy Yost
Court Processing Assistant I/II/III
Brenda McCormick
Ct. Atty - FL & Civ SHLA Ctr.
Brenda McCormick
Self Help Assistant I/II/III
UNIT
1.00 Unrepresented/Mgmt
12.00 SEIU
5.01 CJAAVC
4.50
Total
Judicial Assistants - VTA
Traffic/Other Infrac - EC
Families and Children - VTA
Records - EC
Court Children's Waiting
Rooms
Records - VTA
Family Court Services - VTA
Records - VTA
Family Law Facilitator - EC
Family Law Facilitator - VTA
SUMMARY BY EMT
Michael Planet
Robert Sherman
Pat Patterson
Brenda McCormick
10/25/2011 4:28 PM
SER 117
Case 2:11-cv-08083-R -MAN Document 24
1
2
3
4
5
6
7
8
9
10
Rachel Matteo-Boehm (SBN 195492)
rachel.matteo-boehm@hro.com
David Greene (SBN 160107)
david.greene@hro.com
Leila C. Knox (SBN 245999)
leila.knox@hro.com
HOLME ROBERTS & OWEN LLP
560 Mission Street, Suite 250
San Francisco, CA 94105-2994
Telephone: (415) 268-2000
Facsimile: (415) 268-1999
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE
11
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
12
13
14
Filed 10/31/11 Page 1 of 32 Page ID #:468
Courthouse News Service,
CASE NO. CV11-08083 R (MANx)
15
Plaintiff,
16
17
18
19
20
v.
Michael D. Planet, in his official
capacity as Court Executive
Officer/Clerk of the Ventura County
Superior Court.
21
Defendant.
22
PLAINTIFF COURTHOUSE NEWS
SERVICE’S OPPOSITION TO THE
MOTION TO DISMISS AND
ABSTAIN OF DEFENDANT
MICHAEL PLANET
Date:
Nov. 21, 2011
Time:
10:00 am
Courtroom: G-8 (2nd Floor)
Judge: The Hon. Manuel L. Real
23
24
25
26
27
28
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
SER 118
Case 2:11-cv-08083-R -MAN Document 24
Filed 10/31/11 Page 2 of 32 Page ID #:469
TABLE OF CONTENTS
1
2
Page
3
INTRODUCTION ......................................................................................................... 1
4
I.
5
6
DEFENDANT’S MOTION MISSTATES THE NATURE OF THE
RELIEF COURTHOUSE NEWS SEEKS, AND CERTAIN
CORRECTIONS TO DEFENDANT’S ASSERTIONS ARE ALSO IN
ORDER .................................................................................................................. 2
7
A. Defendant’s Concession That There Is A First Amendment Right
Of Access To Civil Court Records Means Access To Those Records
Cannot Be Denied Unless Strict Requirements Are Met, And Those
Requirements Trump State Statutes That Are Less Protective Of
Access ............................................................................................................. 2
8
9
10
11
B.
The Failure Of SB 326 To Pass Earlier This Year Demonstrates
The Need For This Court To Act ................................................................... 3
C.
12
Defendant’s Description Of The Nature Of Courthouse News’ Claims
And The Relief Sought Is Inaccurate; Courthouse News Seeks Only An
Order That Defendant Stop Obstructing Same-Day Access .......................... 5
13
14
15
16
17
18
19
20
II.
THIS COURT SHOULD NOT ABSTAIN FROM DECIDING THE
IMPORTANT ISSUES OF FEDERAL LAW RAISED IN THE
COMPLAINT ........................................................................................................ 6
A. Abstention Is Strongly Disfavored; A Federal Court Should Decline
To Exercise Its Federal Question Jurisdiction In Only The Rarest Of
Situations ........................................................................................................ 6
21
22
B.
The O’Shea Abstention Doctrine Does Not Apply Because The Relief
Courthouse News Seeks Will Not Be Highly Intrusive On The State
Court, Unworkable Or Require This Court To Audit The State Court.......... 7
C.
Pullman Abstention is Not Appropriate Because This Court Need Not
Decide A Single Issue of State Law............................................................... 14
23
24
25
26
27
28
III. DEFENDANT’S ATTEMPT TO AVOID ADJUDICATION OF HIS
DELAYS IN ACCESS UNDER THE FIRST AMENDMENT AND
COMMON LAW HAS NO MERIT, AND HIS MOTION TO DISMISS
i
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
SER 119
Case 2:11-cv-08083-R -MAN Document 24
1
Filed 10/31/11 Page 3 of 32 Page ID #:470
COURTHOUSE NEWS’ FIRST AND SECOND CLAIMS FOR RELIEF
SHOULD BE DENIED.......................................................................................... 16
2
3
4
5
A. Defendant’s Motion Should Be Denied Because The First And Second
Claims For Relief Are Grounded Not Just In The Denial Of Same-Day
Access In Particular, But Also The Overall Delays In General..................... 16
B.
Whether A Denial Of Same Day Access Violates The First Amendment
And Common Law Rights Of Access Is A Factual Inquiry To Be
Determined On A Case-By-Case Basis, And Is Not An Appropriate
Basis For Dismissal Under FRCP 12(b)(6).................................................... 18
C.
Defendant’s Other Arguments In Support Of His Motion To Dismiss
Lack Merit ...................................................................................................... 19
6
7
8
9
10
11
12
13
IV. GIVEN DEFENDANT’S ASSERTION OF ELEVENTH AMENDMENT
IMMUNITY, COURTHOUSE NEWS CONSENTS TO THE DISMISSAL
OF ITS STATE LAW CLAIM, AND THAT CLAIM ONLY.............................. 23
CONCLUSION.............................................................................................................. 23
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
SER 120
Case 2:11-cv-08083-R -MAN Document 24
Filed 10/31/11 Page 4 of 32 Page ID #:471
TABLE OF AUTHORITIES
1
FEDERAL CASES
2
Page(s)
3
4
5
6
7
8
9
10
11
12
31 Foster Children v. Bush,
329 F.3d 1255 (11th Cir. 2003) ............................................................................8
Ad Hoc. Commission on Judicial Admin v. Massachusetts,
488 F.2d 1241 (1st Cir. 1973).............................................................................11
Associated Press v. District Court,
705 F.2d 1143 (9th Cir. 1983) ........................................................................3, 19
Benavidez v. Eu,
34 F.3d 825 (9th Cir. 1994) ..............................................................................8, 9
Clement v. California Department of Corrections,
364 F.3d 1148 (9th Cir. 2004) ..............................................................................9
13
14
Colorado River Water Conservation District v. United States,
424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976) ......................................7
15
16
Connecticut Magazine v. Moraghan,
676 F. Supp. 38 (D. Conn. 1987).......................................................................14
17
18
County of Allegheny v. Frank Mashuda,
360 U.S. 185, 79 S. Ct. 1060, 3 L. Ed. 2d 1163 (1959) ......................................7
19
20
21
22
23
24
25
26
27
Courthouse News Service v. Jackson,
2009 U.S. Dist. LEXIS 62300,
38 Media L. Rep. 1890 (S.D. Tex. 2009) ............................................5, 6, 19, 22
Courthouse News Service v. Jackson,
2010 U.S. Dist. LEXIS 74571,
38 Media L. Rep. 1894 (S.D. Tex. 2010) ............................................5, 6, 19, 22
Doe v. United States Department of Justice,
753 F.2d 1092 (D.C. Cir. 1985).........................................................................17
In re Eastman Kodak Co.,
2010 WL. 2490982 (S.D.N.Y. 2010).................................................................23
28
iii
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
SER 121
Case 2:11-cv-08083-R -MAN Document 24
1
Filed 10/31/11 Page 5 of 32 Page ID #:472
E.T. v. Cantil-Sakauye,
___ F.3d ___, No. 10-15248, slip op. 17457 (9th Cir., Sept. 13, 2011).......10, 11
2
3
FOCUS v. Allegheny Court of Common Pleas,
75 F.3d 834 (3rd Cir. 1996) ................................................................................14
4
5
Family Division Trial Lawyers of the Superior Court-D.C. v. Moultrie,
725 F.2d 695 (D.C. Cir. 1984)...........................................................................10
6
7
Gardner v. Luckey,
500 F.2d 712 (5th Cir. 1974) ..............................................................................10
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Gerstein v. Pugh,
420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) ..........................................8
Gilbertson v. Albright,
381 F.3d 965, 968 (9th Cir. 2004) (en banc) ........................................................8
Globe Newspaper Co. v. Pokaski,
868 F.2d 497 (1st Cir. 1989)...............................................................................19
Globe Newspaper Co. v. Superior Court,
457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) ..............................3, 13
Green v. City of Tucscon,
255 F.3d 1086 (9th Cir. 2001) ..............................................................................8
Joseph A. v. Ingram,
275 F.3d 1253 (10th Cir. 2002) ............................................................................8
Kamakana v. City & County of Honolulu,
447 F.3d 1172 (9th Cir. 2006) ............................................................................18
Kaufman v. Kaye,
466 F.3d 83 (2d Cir. 2006) ................................................................................12
Lake v. Speziale,
580 F. Supp. 1318 (D. Conn. 1984)...................................................................10
Los Angeles County Bar Association v. Eu,
979 F.2d 697 (9th Cir. 1992) ..............................................................................11
28
iv
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
SER 122
Case 2:11-cv-08083-R -MAN Document 24
1
Filed 10/31/11 Page 6 of 32 Page ID #:473
Luckey v. Miller,
976 F.2d 673 (11th Cir. 1992) ............................................................................10
2
3
Mason v. County of Cook,
488 F. Supp. 2d 761 (N.D. Ill. 2007).................................................................10
4
5
Massey v. Banning Unified School District,
256 F. Supp. 2d 1090 (C.D. Cal. 2003) .............................................................17
6
7
Middlesex County Ethics Commission v. Garden State Bar Association,
457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982) ....................................8
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Miofsky v. Superior Court,
703 F.2d 332 (9th Cir. 1983) ................................................................................7
Navarro v. Block,
250 F.3d 729 (9th Cir. 2001) ..............................................................................17
New Orleans Public Service, Inc. v. Council of City of New Orleans,
491 U.S. 350, 109 S. Ct. 2506, 105 L. Ed. 2d 298 (1989) ..................................7
Newcal Industrial, Inc. v. Ikon Office Solution,
513 F.3d 1038 (9th Cir. 2008) ..............................................................................4
Norwalk Core v. Norwalk Redevelopment Agency,
395 F.2d 920 (2d Cir. 1968) ..............................................................................17
In re NVIDIA, ,
2008 WL. 1859067 (N.D. Cal. 2008) ................................................................22
O’Shea v. Littleton,
414 U.S. 488, 94 S. Ct. 669 38, L. Ed. 2d 674 (1974) .. 6, 7, 8, 9, 10, 11, 12, 13
Papasan v. Allen,
478 U.S. 265, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986) ..................................23
Parker v. Turner,
626 F.2d 1 (6th Cir. 1980) ..................................................................................10
Phoenix Newspapers, Inc. v. United States District Court,
156 F.3d 940 (9th Cir. 1998) ...............................................................................3
28
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
SER 123
Case 2:11-cv-08083-R -MAN Document 24
1
Filed 10/31/11 Page 7 of 32 Page ID #:474
Pompey v. Broward County,
95 F.3d 1543 (11th Cir. 1996) ............................................................................10
2
3
Porter v. Jones,
319 F.3d 483 (9th Cir. 2003) ........................................................................15, 16
4
5
Potrero Hills Landfill, Inc. v. County of Solano,
__ F.3d __, No. 10-15229 slip op. 17295 (9th Cir., Sept. 13, 2011)..............7, 15
6
7
Press-Enterprise Co. v. Superior Court,
478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) ......................................3, 18
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Pulliam v. Allen,
466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 ..................................6, 7, 8, 10
Railroad Commission of Texas v. Pullman,
312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) ...............................14, 15, 16
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) ........................1, 15, 18
Ripplinger v. Collins,
868 F.2d 1043 (9th Cir. 1989) ............................................................................15
Rivera-Puig v. Garcia-Rosario,
983 F.2d 311 (1st Cir. 1992)...................................................................13, 14, 15
Shroyer v. New Cingular Wireless Services, Inc.,
622 F.3d 1035 (9th Cir. 2010) ............................................................................17
The Fort Wayne Journal-Gazette v. Baker,
788 F. Supp. 379 (N.D. Ind. 1992) ..............................................................13, 14
The Hartford Courant Co. v. Pellegrino,
380 F.3d 83 (2d Cir. 2004) ..............................................................13, 14, 15, 16
Times Mirror Co v. United States,
873 F.2d 1210 (9th Cir. 1989) ............................................................................18
United States v. Brooklier,
685 F.2d 1162 (9th Cir. 1982) ..............................................................................2
28
vi
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
SER 124
Case 2:11-cv-08083-R -MAN Document 24
1
Filed 10/31/11 Page 8 of 32 Page ID #:475
United States v. Edwards,
672 F.2d 1289 (7th Cir. 1982) ............................................................................18
2
3
United States v. Edwards,
823 F.2d 111 (5th Cir. 1987) ........................................................................21, 22
4
5
Valley Broad. Co. v. United States District Court,
798 F.2d 1289 (9th Cir. 1986) ............................................................................18
6
7
Wisconsin Department of Corrections v. Schacht,
524 U.S. 381, 118 S. Ct. 2047, 141 L. Ed. 2d 364 (1998) ................................23
8
9
10
11
12
13
Wisconsin v. Constantineau,
400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971) ......................................14
Wolfson v. Brammer,
616 F.3d 1045 (9th Cir. 2010) ............................................................................15
Younger v. Harris,
401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) ................7, 8, 9, 12, 13, 14
14
STATE CASES
15
16
In re Estate of Hearst,
67 Cal. App. 3d 777, 136 Cal. Rptr. 821 (1977) ...............................................19
17
18
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
20 Cal. 4th 1178, 86 Cal. Rptr. 2d 778 (1999) .............................................15, 19
19
FEDERAL STATUTES
20
21
Federal Rule of Civil Procedure 12(b)(6) ................................................4, 17, 18, 22
22
23
STATE STATUTES
Cal. Code Civ. Proc. § 124 ......................................................................................15
24
25
26
Cal. Rule of Court 2.550 ..........................................................................................15
California Government Code § 68150.............................................................3, 5, 16
27
28
California Penal Code § 868 ......................................................................................3
vii
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
SER 125
Case 2:11-cv-08083-R -MAN Document 24
Filed 10/31/11 Page 9 of 32 Page ID #:476
INTRODUCTION
1
2
The public’s right of timely access to court records is not simply a “courtesy”
3
granted by the courts. It is a fundamental civil liberty that the courts cannot infringe
4
upon without conducting a demanding constitutional analysis, even though court
5
executives like Defendant may prefer to avoid it.
6
Despite acknowledging that the public has First Amendment rights of access to
7
the court records in his control, Defendant shows little respect for those rights, and
8
seems affronted by a request that such access be timely. Moreover, Defendant is
9
dismissive of the press’s role, recognized repeatedly by the Supreme Court, in
10
obtaining access to the courts as the public’s surrogate. See Richmond Newspapers,
11
Inc. v. Virginia, 448 U.S. 555, 573, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).
12
In an effort to avoid having a federal court examine his practice of denying
13
access to civil complaints until his staff – and his staff alone – exercising its unfettered
14
discretion, determines when it will make those records available, Defendant
15
mischaracterizes both the First Amendment rights at issue and the relief Courthouse
16
News seeks to vindicate those rights. As the Supreme Court has repeatedly held,
17
when a First Amendment right of access exists, blanket rules and policies restricting
18
such access must give way to case-by-case determinations in order to ensure that
19
access is restricted in only exceptional circumstances. The Complaint in this case
20
seeks only injunctive and declaratory relief that would prevent Defendant from
21
continuing his practice of restricting access to new complaints without complying
22
with the procedural and substantive requirements the Supreme Court and the Ninth
23
Circuit have set forth. Nor is there any reason for this Court to abstain from deciding
24
these issues of federal constitutional law, leaving Courthouse News to enforce these
25
rights in the very court that is denying them.
26
With one exception, see infra, Defendant’s Motion to Dismiss and Abstain must
27
thus be rejected. The Complaint clearly sets forth claims based on the denials of the
28
rights of access for which this Court can, and should, grant relief.
1
MPA IN SUPPT. OF MOTION FOR PRELIMINARY INJUNCTION
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I.
3
DEFENDANT’S MOTION MISSTATES THE NATURE OF THE RELIEF
COURTHOUSE NEWS SEEKS, AND CERTAIN CORRECTIONS TO
DEFENDANT’S ASSERTIONS ARE ALSO IN ORDER
4
As a preliminary matter, Defendant’s motion to dismiss and abstain is notable
5
for the extent to which it misstates both the nature Courthouse News’ claims as well
6
as the facts and the law relevant to those claims. Accordingly, before proceeding to
7
address the merits of Defendant’s motion, certain preliminary observations and
8
corrections are in order.
9
A.
2
10
11
Defendant’s Concession That There Is A First Amendment Right Of
Access To Civil Court Records Means Access To Those Records Cannot Be
Denied Unless Strict Requirements Are Met, And Those Requirements
Trump State Statutes That Are Less Protective Of Access
12
Defendant concedes, as he must, that there is a First Amendment right of access
13
to civil court records, and that such access must be timely. Def’s Memorandum, at 18
14
(“CNS alleges that it has both a constitutional and common-law right of access to
15
court records, and that such access must be timely. ... Ventura Superior Court does not
16
dispute either proposition”). Nor does he appear to dispute that there is a First
17
Amendment right of access to civil court complaints. However, he fails to appreciate
18
two important features of the First Amendment access right.
19
First, once the First Amendment right of access is found to attach to a record or
20
a class of records, it can only be overcome on a case-by-case basis, by way of an
21
adjudicative process performed by a judge where the party seeking to restrict access
22
satisfies the stringent three-part test established by the Ninth Circuit. United States v.
23
Brooklier, 685 F.2d 1162, 1168-69 (9th Cir. 1982). Under the test, the party seeking to
24
restrict access (in this case, Defendant) must prove: (1) the existence of a right of
25
comparable importance to the First Amendment that is threatened by public access to
26
the court records; (2) a substantial probability of irreparable damage to the asserted
27
right will result if access is not withheld; and (3) a substantial probability that
28
alternatives to withholding access will not adequately protect the asserted right.
2
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Phoenix Newspapers, Inc. v. United States District Court, 156 F.3d 940, 949 (9th Cir.
2
1998); Associated Press v. District Court, 705 F.2d 1143, 1145-46 (9th Cir. 1983).
Second, neither California Government Code § 68150 nor any of the Rules of
3
4
Court Defendant relies on may trump the federal constitutional right of access. In its
5
landmark 1986 decision in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14,
6
106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (“Press-Enterprise II”), the U.S. Supreme
7
Court found California Penal Code § 868 unconstitutional because the law permitted
8
courts to close criminal preliminary hearings on a mere showing of a reasonable
9
probability of harm rather than meeting the more demanding test mandated by the
10
First Amendment. Similarly, in 1982, the high court held unconstitutional a
11
Massachusetts state statute requiring trial courts to exclude the public from the
12
courtroom during the testimony of a minor victim of a sex crime in all instances; such
13
determinations, the high court said, would have to be made on a case-by-case basis in
14
accordance with First Amendment standards. Globe Newspaper Co. v. Superior
15
Court, 457 U.S. 596, 606-08, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982).
16
As these and other cases make clear, neither Government Code § 68150 nor the
17
Rules of Court on which Defendant relies can set lower standards for access than what
18
is required by the First Amendment. Senate Bill 326 would have provided clear
19
direction to trial courts to provide same day access, but it would not have allowed
20
courts to provide fewer rights than those already guaranteed by the Constitution.
21
Thus, neither existing state law nor SB 326 should deter this Court from making a
22
determination about Courthouse News’ First Amendment rights.
23
B.
24
25
26
27
28
The Failure Of SB 326 To Pass Earlier This Year Demonstrates The Need
For This Court To Act
Because Defendant makes so much of Courthouse News’ support of SB 326,
and incorrectly attributes certain statements made in connection with that bill to
Courthouse News, a brief response is in order.
Traditionally, and as demonstrated by the examples set forth in paragraphs 103
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14 & Exhibit 1 of Courthouse News’ Complaint,1 courts have provided same-day
2
access to new civil complaints after initial intake tasks, for example accepting the
3
filing fee, assigning a case number, and/or noting the first-named plaintiffs and
4
defendants on an intake log, but well before full processing. This enabled reporters
5
who visit courts at the end of each court day to review the large majority of civil cases
6
filed earlier that same day. Many courts in California and across the nation still
7
provide the traditional same-day access in this manner, including this Court. See
8
Complaint ¶¶ 10-14 & Exh. 1. As indicated in the bill text, however, the use of new
9
electronic technologies for filing court actions and modernizing access to court
10
records has, in some instances, resulted in delays in access to court documents.
Senate Bill 326 would have addressed these delays by directing the California
11
12
Judicial Council, which governs California’s state courts, to adopt a Rule of Court
13
requiring newly filed complaints to be made available for inspection at the courthouse
14
no later than the end of each court day. However, as Defendant readily acknowledges,
15
that bill did not make it out of committee this year, and it is strongly opposed by the
16
California Judicial Council, Administrative Office of the Courts. Given this reality,
17
and having tried and failed in its efforts to work cooperatively with Defendant and his
18
staff to resolve the delays in access at Ventura Superior, Courthouse News’ only real
19
avenue to resolving those delays was federal litigation. Thus, if anything, SB 326
20
only serves to emphasize the need for this Court to exercise its jurisdiction over the
21
current dispute.
22
23
24
25
26
27
28
1
Nowhere in Defendant’s notice of motion or supporting memorandum does he
specify the Federal Rule of Civil Procedure or other statutory authority under which
he is bringing his motion. However, because Defendant states his motion to dismiss is
for “failure to state a claim,” Courthouse News assumes it is brought under FRCP
12(b)(6). As such, the Court must “accept as true all facts alleged in the complaint,
and drawing all reasonable inferences in favor of” the plaintiff. Newcal Indus., Inc. v.
Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008).
4
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One final point about SB 326 is also in order. On page 8 of his
1
2
memorandum, Defendant asserts that in sponsoring the bill, Courthouse News
3
“claimed that: (a) Government Code section 68150 already ‘provides the public
4
with reasonable access to court records;’” and that “(b) the term ‘reasonable
5
access is not defined ... .’” Def’s Memorandum, at 8; see also 17 (making similar
6
assertions about what Courthouse News purportedly “acknowledged”).
This is flat-out wrong. Courthouse News never claimed that Government Code
7
8
§ 68150 “already ‘provides the public with reasonable access to court records,’” nor
9
has it ever “acknowledged” that “the term ‘reasonable access is not defined.’” As is
10
clear from Defendant’s own Request for Judicial Notice, these “claims” were made
11
not by Courthouse News but rather by the California Senate Judiciary Committee, the
12
author of the Bill Analysis in question. Def’s RJN, Exh. B at B9.
13
C.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendant’s Description Of The Nature Of Courthouse News’ Claims And
The Relief Sought Is Inaccurate; Courthouse News Seeks Only An Order
That Defendant Stop Obstructing Same-Day Access
In an effort to support his abstention arguments, Defendant mischaracterizes the
nature of Courthouse News’ claims and the scope of relief it seeks, claiming that a
ruling favoring Courthouse News “would require this Court to ‘inquire into the
administration of [California’s judicial] system, its utilization of personnel,’ and the
advisability of requiring it to adopt a ‘same-day access’ policy in light of critical and
competing state budgetary concerns.” This is not correct. Nor is Courthouse News
asking Defendant to, as he puts it, “hurry up,” or otherwise resolve delays in judicial
administration. Def’s Memorandum, at 13, 22.
The relief Courthouse News is seeking is quite simple: prohibit Defendant from
obstructing timely access to the newly filed civil complaints at Ventura Superior –
documents that, because they are newly filed, are literally sitting right there in the
intake area. This is nothing more than the relief the United States District Court for
the Southern District of Texas granted in a recent case involving similar delays in
access to new case-initiating documents. Courthouse News Service v. Jackson, 2009
5
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U.S. Dist. LEXIS 62300, at *14, 38 Media L. Rep. 1890 (S.D. Tex. 2009).2 And it is
2
nothing more than what is already being provided to Courthouse News and other
3
reporters in other state and federal courts in California and across the nation, as
4
described in the Complaint at paragraphs 10-14 & Exhibit 1. And as the experience of
5
these courts demonstrates, same-day access need not involve any undue cost or staff
6
effort, much less the far-reaching restructuring of the California court system that
7
Defendant suggests.
8
II.
9
THIS COURT SHOULD NOT ABSTAIN FROM DECIDING THE
IMPORTANT ISSUES OF FEDERAL LAW RAISED IN THE COMPLAINT
10
Defendant has moved this Court to abstain or in the alternative dismiss the
11
12
13
14
Complaint on the basis of the O’Shea and Pullman abstention doctrines. Neither
doctrine properly applies to the Complaint. Defendant’s abstention arguments must
thus be rejected.
16
Abstention Is Strongly Disfavored; A Federal Court Should Decline To
Exercise Its Federal Question Jurisdiction In Only The Rarest Of
Situations
17
Federal courts have an “unflagging obligation” to exercise their jurisdiction
15
A.
18
19
20
21
22
23
24
25
26
27
28
2
In Jackson, the United States District Court for the Southern District of Texas issued
a preliminary injunction requiring the Houston state court clerk to cease his practice of
delaying access to new to case-initiating civil petitions filed in that court until after
they had been fully processed and posted on his web site, and instead provide those
documents to Courthouse News Service “on the same day the petitions are filed,”
except where the filing party was seeking a temporary restraining order or other
immediate relief or had properly placed the pleading under seal. Id. at *14-15. That
preliminary injunction order was followed by a stipulated permanent injunction
requiring same-day access. Courthouse News Service v. Jackson, 2010 U.S. Dist.
LEXIS 74571, 38 Media L. Rep. 1894 (S.D. Tex. 2010). In light of these decisions,
Courthouse News respectfully disagrees with Defendant’s assertion that no court has
“even considered” whether access to new civil case filings should be provided on the
same day they are filed or submitted to the court. Def’s Memorandum, at 20.
6
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and thus should abstain from deciding issues of federal constitutional law, especially
2
when raised in the context of § 1983 lawsuits, in only the most “extraordinary and
3
narrow” situations. Miofsky v. Superior Court, 703 F.2d 332, 338 (9th Cir. 1983)
4
(quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800,
5
817-18, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), and County of Allegheny v. Frank
6
Mashuda, 360 U.S. 185, 188, 79 S. Ct. 1060, 3 L. Ed. 2d 1163 (1959)). See also
7
Potrero Hills Landfill, Inc. v. County of Solano, __ F.3d __, __, No. 10-15229 slip op.
8
17295, 17305 (9th Cir., Sept. 13, 2011) (quoting New Orleans Public Service, Inc. v.
9
Council of City of New Orleans, 491 U.S. 350, 358, 109 S. Ct. 2506, 105 L. Ed. 2d
10
298 (1989) (“NOPSI”) (“[A]bstention remains an extraordinary and narrow exception
11
to the general rule that federal courts ‘have no more right to decline the exercise of
12
jurisdiction which is given, than to usurp that which is not given.’”). Courts must thus
13
apply abstention doctrines narrowly to avoid “mak[ing] a mockery of the rule that
14
only exceptional circumstances justify a federal court’s refusal to decide a case in
15
deference to the States.” NOPSI, 491 U.S. at 368, and should be extremely reluctant
16
to expand established abstention doctrines beyond their strictly defined bounds.
17
Potrero Hills, No. 10-15229 at 17304-05; Miofsky, 703 F.2d at 338.
18
B.
19
20
21
22
23
24
25
26
27
The O’Shea Abstention Doctrine Does Not Apply Because The Relief
Courthouse News Seeks Will Not Be Highly Intrusive On The State
Court, Unworkable Or Require This Court To Audit The State Court
Defendant’s attempt to apply O’Shea abstention to the present matter must be
rejected because the straightforward relief Courthouse News seeks is not the type to
which the doctrine applies.
The O’Shea abstention doctrine, first announced in O’Shea v. Littleton, 414
U.S. 488, 94 S. Ct. 669 38, L. Ed. 2d 674 (1974), is a seldom-used and highly
specialized application of the abstention doctrine established by the Supreme Court in
Younger v. Harris, 401 U.S. 37, 43-44, 91 S. Ct. 746, 27 L. Ed. 2d. 669 (1971). See
Pulliam v. Allen, 466 U.S. 522, 539 n.20, 104 S. Ct. 1970, 80 L. Ed. 2d 565
28
7
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(describing O’Shea as being decided on “Younger v. Harris grounds”).3 Whereas
2
Younger addressed the concern that federal courts not unduly interfere with pending
3
state court proceedings, Middlesex County Ethics Comm’n v. Garden State Bar Ass’n,
4
457 U.S. 423, 432, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982), O’Shea focused on the
5
concern that federal lawsuits against state court systems would result indirectly in the
6
same type of undue and serious interruption of both pending and future state court
7
litigation “that Younger v. Harris and related cases sought to prevent.” 414 U.S. at
8
500. The hallmark of both Younger and O’Shea is thus the actual interruption of and
9
interference with the adjudication of lawsuits in the state court. See Gerstein v. Pugh,
10
420 U.S. 103, 108 n.9, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) (rejecting Younger
11
abstention in action to require Florida prosecutors to hold probable cause hearings).
12
As such, as in Younger, a dismissal under O’Shea is based on prudential
13
concerns for comity and federalism raised by the interference with state adjudicatory
14
proceedings rather than a lack of jurisdiction. Benavidez v. Eu, 34 F.3d 825, 829 (9th
15
Cir. 1994). Like Younger abstention, O’Shea abstention is not discretionary; this
16
Court has no discretion to abstain from this case when the narrow and exacting legal
17
standards of O’Shea are not strictly met. See Green v. City of Tucscon, 255 F.3d
18
1086, 1093 (9th Cir. 2001) (en banc), overruled on other grounds by Gilbertson v.
19
Albright, 381 F.3d 965, 968 (9th Cir. 2004) (en banc).
In O’Shea, a potential class of all African-American residents of an Illinois city
20
21
claimed that the county magistrate and judge denied them their civil rights by setting
22
higher bonds, imposing harsher confinement conditions and bringing mere ordinance
23
violations to trial in a racially discriminatory and retaliatory manner, and sought an
24
injunction against such practices. 414 U.S. at 491-92. As one of its bases for
25
26
27
28
3
Justice White, the author of O’Shea, was a member of the majority in Pulliam as
well. Many courts analyze the O’Shea concerns as merely components of Younger
abstention. See, e.g., 31 Foster Children v. Bush, 329 F.3d 1255, 1276-77 (11th Cir.
2003); Joseph A. v. Ingram, 275 F.3d 1253, 1271 (10th Cir. 2002).
8
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dismissal, the court found that the injunction contemplated by the Seventh Circuit
2
would establish a basis for future intervention that would be “a major continuing
3
intrusion” because it would lead to “continuous or piecemeal interruptions” of future
4
state court proceedings by “any of the members of the respondents’ broadly defined
5
class.” Id. at 500. The court further found the contemplated injunction “unworkable”
6
because of “inherent difficulties in defining the proper standards against which such
7
claims might be measured, and the significant problems of proving noncompliance in
8
individual cases” and the fact that the federal court would be required to continuously
9
monitor and supervise the operation of the state court. Id. at 501-02. Because the
10
class of plaintiffs was so broad and the potential violations of law so varied and
11
numerous, enforcement of the contemplated injunction would require “nothing less
12
than an ongoing federal audit of state criminal proceedings.” Id. at 500.
O’Shea abstention is thus required only if the requested relief meets three
13
14
conditions: (1) it will be a major continuing intrusion, (2) it will be unworkable, and
15
(3) it will require the federal court to audit/monitor the state court extensively on an
16
ongoing basis.4 See Clement v. California Dep’t of Corrections, 364 F.3d 1148, 1153
17
(9th Cir. 2004) (applying this formulation of O’Shea as a substantive limitation on the
18
injunctive relief available against a state entity to address similar federalism and
19
comity concerns).
20
21
22
23
24
25
26
27
28
4
As with Younger, a court must not abstain unless all of these elements are satisfied;
the court is not permitted to use the strength of one element to balance out weaknesses
in the others. See Benavidez, 34 F.3d at 832. Notably, the fact of potential legislation
that might address the same issues raised in federal court is not part of the O’Shea
analysis, despite Defendant’s extensive discussion of it. Def’s Memorandum, at 1415. But, as discussed above, because the First Amendment sets the floor for the
access a state must allow the public to its court system, the Legislature can do no more
than grant the public and the media the same or greater access than what Courthouse
News seeks by the Complaint. A decision by this Court thus poses no threat of
inconsistency, uncertainty or confusion, even in the event the proposed legislation
were to ever became law.
9
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In each of these elements, a high degree of intrusion upon the state court is
1
2
essential. Surely, any federal lawsuit against a court official raises the possibility of
3
some disruption to the operation of the court and some inquiry by the federal court
4
into the workings of the state court. And any federal court decision finding state court
5
policies invalid entails some continuing responsibility on the state court to comply.
6
But treating O’Shea as barring all such actions, regardless of the degree of intrusion,
7
transforms a narrow abstention doctrine into a grant to state court officers of
8
immunity, a protection the Supreme Court has repeatedly denied them. See Pulliam,
9
466 U.S. at 541-42 & n.20.
Thus O’Shea abstention has been confined to cases, typically class actions,
10
11
seeking as relief wide-ranging institutional reform of the judiciary.5 And it has been
12
rejected in cases in which major restructuring is not sought, such as where the court is
13
merely required to replace an existing rule or policy with a different one.6
E.T. v. Cantil-Sakauye, __ F.3d __, No. 10-15248, slip op. 17457 (9th Cir., Sept.
14
15
13, 2011), decided last month, and as Defendant notes, subject to a pending motion
16
for rehearing en banc, is the only Ninth Circuit case that discusses O’Shea as an
17
18
19
20
21
22
23
24
25
26
27
28
5
See, e.g., Pompey v. Broward County, 95 F.3d 1543, 1544-45 (11th Cir. 1996) (action
by five indigent fathers challenging numerous constitutional violations during court’s
“Daddy Roundups”); Luckey v. Miller, 976 F.2d 673, 676 (11th Cir. 1992) (class
action that sought to substantially revamp Georgia’s indigent defense system); Parker
v. Turner, 626 F.2d 1, 2 (6th Cir. 1980) (class action by indigent fathers seeking
institutional reform of juvenile courts); Gardner v. Luckey, 500 F.2d 712, 713 (5th Cir.
1974) (“sweeping class action” by prisoners to reform the Florida Public Defender
Office).
6
See, e.g., Family Division Trial Lawyers of the Superior Court-D.C. v. Moultrie, 725
F.2d 695, 703-04 (D.C. Cir. 1984) (action by three attorneys who request assignments
of juvenile neglect cases seeking to change court’s payment structure); Mason v.
County of Cook, 488 F. Supp. 2d 761, 765 (N.D. Ill. 2007) (proposed class action
challenging bond hearing procedures); Lake v. Speziale, 580 F. Supp. 1318, 1331 (D.
Conn. 1984) (class action to require judges to advise indigent defendants in civil
contempt proceedings of their right to counsel).
10
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abstention doctrine, and is distinguishable from the present case on these grounds. In
2
E.T., like in O’Shea, a proposed large class sought wholesale institutional reform and
3
a major re-structuring of a court system, namely a decrease in the caseloads of the
4
court-appointed attorneys in the Sacramento County dependency courts. Id. at 17460-
5
61. The Ninth Circuit held that abstention was required because the requested relief
6
would require the district court to seriously intrude upon and extensively audit the
7
operation of the court system. Id. at 17643. The Ninth Circuit distinguished its
8
previous decision in Los Angeles County Bar Ass’n v. Eu, 979 F.2d 697, 699 (9th Cir.
9
1992) (“LA Bar”), in which the Bar sought an order that the court needed more judges.
10
E.T., at 17464. In LA Bar, the Ninth Circuit concluded that it could grant the
11
requested relief even though it would require some “restructuring,” and even though
12
its ruling would lead to subsequent federal actions “exploring the contours” of the
13
constitutional right the court would announce. 979 F.2d at 703. The E.T. court
14
characterized the relief sought in E.T. as far more intrusive than the relief sought in LA
15
Bar: the relief sought in LA Bar was “a simple increase in the number of judges”
16
while the relief in E.T. would involve “a substantial interference with the operation of
17
the program, including allocation of the judicial branch budget, establishment of
18
program priorities, and court administration,” and potentially the “examination of the
19
administration of substantial number of individual cases.” E.T., at 17464.
The relief sought by Courthouse News is not nearly as intrusive on the court
20
21
system as that sought in either O’Shea or E.T. or any of the institutional reform cases.7
22
Indeed, it is not even as intrusive as the appoint-more-judges relief approved of in LA
23
24
25
26
27
28
7
Nor does the relief in the instant case sought bear any relation to that sought in
another case upon which Defendant relies, Ad Hoc. Comm’n on Judicial Admin v.
Massachusetts, 488 F.2d 1241, 1245-46 (1st Cir. 1973), a pre-O’Shea case, decided
primarily on political question rather than Younger grounds. In Ad Hoc Comm’n, a
putative class asked the federal court to “order enlargement and restructuring of the
entire state court system.” Id. at 1243.
11
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Bar. Courthouse News does not seek any restructuring of Ventura Superior.
2
Courthouse News simply asks this Court to prohibit Defendant from affirmatively
3
obstructing same day access to complaints, access that, as alleged in the Complaint,
4
the media has traditionally been given in courts around the country, and which, as
5
alleged in the Complaint, Defendant simply lacks the will, not the ability, to do.
6
Complaint, ¶¶ 10-14 & Exh. 1, Prayer for Relief, ¶1.8
Most importantly, the hallmark of both O’Shea and Younger – the prospect that
7
8
the federal court’s action will interfere with pending or future state adjudications – is
9
entirely absent in this case. The prohibition Courthouse News seeks will not interfere
10
with, interrupt, delay, disrupt, of affect the outcome of any pending or future matter in
11
Ventura Superior, or in any California state court.9
Nor are any of the other O’Shea factors present. The relief Courthouse News
12
13
seeks is eminently workable. As alleged in paragraphs 10-14 and Exhibit 1 to the
14
Complaint, numerous other courts across the country provide the public and/or the
15
press with same day access to complaints. Ventura Superior thus has numerous
16
models for compliance with the requested relief. Moreover, the relief sought by
17
Courthouse News has single and wholly objective criterion: do not obstruct same-day
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19
8
20
21
22
23
24
25
26
27
28
Nor does Courthouse News by its Complaint seek this Court to order Defendant to
expend funds. Complaint, Prayer for Relief ¶¶ 1-2.
9
The present case is thus unlike Kaufman v. Kaye, 466 F.3d 83, 87 (2d Cir. 2006),
upon which Defendant also relies. In Kaufman, the plaintiff complained that his due
process rights were violated by the New York appellate court system’s secret process
of assigning appellate judges to matters on a non-random basis. Id. at 86. The Second
Circuit abstained because if it declared that the assignment system was
unconstitutional, it would open the door to any party who did not like his assigned
panel to delay the appeal by way of a federal enforcement action. “Such challenges
would inevitably lead to precisely the kind of ‘piecemeal interruptions of ... state
proceedings’ condemned in O’Shea.” Id. at 87 (omission in original). In contrast, any
future challenge to Ventura Superior’s compliance with the injunction will not
interrupt any proceeding in that court.
12
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access. Nor will the relief Courthouse News seeks require this Court to audit or
2
monitor Ventura Superior beyond simply asking Defendant to justify his current
3
policy.10
Indeed, federal actions to enforce the public’s First Amendment right of access
4
5
to state court records and proceedings will rarely raise the federalism and comity
6
concerns that underlie both Younger and O’Shea. In The Hartford Courant Co. v.
7
Pellegrino, 380 F.3d 83, 85-86 (2d Cir. 2004), a case strongly analogous to the instant
8
action, several media companies brought a § 1983 action challenging the practice of
9
the Connecticut state court system of sealing the docket sheets of certain cases so that
10
the public could not discover even the existence of the litigation from the court
11
records. In Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 322 (1st Cir. 1992), a
12
reporter challenged the constitutionality of a Puerto Rico court rule that closed all
13
criminal preliminary hearings. In both instances, the Court rejected the defendant
14
court system’s claim that the Younger abstention applied, even though similar actions
15
had been filed in the state/commonwealth courts. Hartford Courant, 380 F.3d at 101;
16
17
18
19
20
21
22
23
24
25
26
27
28
10
Defendant contends that, “most significantly,” the injunction Courthouse News
seeks will require this Court to perform case-by-case adjudications of instances when
same day access could not be provided. Def’s Memorandum, at 13. However,
Defendant both mischaracterizes the Complaint and misstates the abundant body of
First Amendment law on court access. As discussed above, supra at 3-4, the First
Amendment requires that the court that is seeking to seal its own records perform the
case-by-case adjudication to determine whether such closure is permissible. See
Globe Newspaper Co., 457 U.S. at 608. Courthouse News seeks no more than that
here: that Defendant cease his policies preventing Courthouse News from accessing
the new complaints at the end of the day on which they are filed, except where there is
a determination by the judges of his own court that delay is necessary in accordance
with First Amendment standards. To be sure, under existing law, a party may contest
in federal court a state court’s future determination that access should be delayed.
See, e.g., The Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 382-83 (N.D.
Ind. 1992). But that would be a new federal lawsuit at some later point in time, not an
enforcement action in this one. These federal lawsuits are already permitted; a
decision by this Court will not create a new basis for federal lawsuits.
13
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Rivera-Puig, 983 F.2d at 319-20. Despite the presence of federalism and comity
2
concerns, those courts held that federal court was an appropriate venue to the
3
infringement of the First Amendment right of court access in state courts. Hartford
4
Courant, 380 F.3d at 101; Rivera-Puig, 983 F.2d at 319-20.
5
Indeed, under current law, federal courts routinely entertain challenges by the
6
media to closure orders in ongoing state court litigation over federalism and comity
7
objections because access issues are at most collateral to the proceedings in which
8
they arise. As a federal court considering a challenge to a state court gag order found:
9
An injunction issuing from this Court against the enforcement of the gag
10
order ... would not prohibit in any way the pending prosecution itself
11
from going forward. Any interference with the state proceedings would
12
be minimal and therefore cannot justify the eschewal of the Court’s
13
jurisdiction to protect the federal constitutional rights of the plaintiff.
14
Connecticut Magazine v. Moraghan, 676 F. Supp. 38, 41 (D. Conn. 1987) (citations
15
omitted). See also FOCUS v. Allegheny Court of Common Pleas, 75 F.3d 834, 843
16
(3rd Cir. 1996) (rejecting Younger abstention in federal court challenge to state court
17
gag order); Fort Wayne Journal-Gazette, 788 F. Supp. at 382-83 (rejecting Younger
18
abstention in federal court challenge to state court protective order).
19
C.
20
21
22
23
24
25
26
27
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Pullman Abstention is Not Appropriate Because This Court Need Not
Decide A Single Issue of State Law
Defendant also argues that this Court should abstain under the Pullman
abstention doctrine, which permits a federal court to wait for a state court to interpret
controlling, but ambiguous, state law authoritatively. See Railroad Commission of
Texas v. Pullman, 312 U.S. 496, 500-01, 61 S. Ct. 643, 85 L. Ed. 971 (1941); see also
Wisconsin v. Constantineau, 400 U.S. 433, 438, 91 S. Ct. 507, 510, 27 L. Ed. 2d 515
(1971) (holding that abstention is not appropriate when the federal claim is not
entangled with complicated unresolved state law issues). Unlike Younger, Pullman
abstention is entirely discretionary: a federal court may retain jurisdiction even if all
14
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of the conditions for abstention are met. Potrero Hills, No. 10-15229, at 17317. In
2
this case, none of the conditions are met.
Three conditions must be met before a federal court may even consider a
3
4
Pullman abstention: (1) the complaint touches a sensitive area of state social policy
5
upon which the federal courts ought not to enter unless no alternative to its
6
adjudication is open; (2) a definitive ruling on an issue of state law would terminate
7
the controversy; and (3) the possibly determinative issue of state law is doubtful.
8
Ripplinger v. Collins, 868 F.2d 1043, 1048 (9th Cir. 1989).
In the Ninth Circuit, the first Pullman factor “will almost never be present” in
9
10
First Amendment cases “because the guarantee of free expression is always an area of
11
particular federal concern” upon which a federal court should rule. Ripplinger, 868
12
F.2d at 1048; see Hartford Courant, 380 F.3d at 100 (denying Pullman abstention on
13
these grounds in court access case).11 Indeed, constitutional challenges based on First
14
Amendment rights “are the kind of cases that the federal courts are particularly well-
15
suited to hear.” Porter v. Jones, 319 F.3d 483, 492 (9th Cir. 2003); accord Wolfson v.
16
Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010).
Nor are the second and third Pullman factors present. There is no uncertain
17
18
question of state law that can resolve this case. Indeed, the California Supreme Court
19
has already issued its definitive ruling on the rights of access to courts, and in so doing
20
adopted the First Amendment analysis developed by the U.S. Supreme Court. NBC
21
Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1181, 1197-1226 &
22
n.13, 86 Cal. Rptr. 2d 778 (1999) (construing Cal. Code Civ. Proc. § 124 as
23
incorporating First Amendment protections).12 California thus does not have its own
24
25
11
26
The First Amendment right of access to courts is included in the right of free
speech. Richmond Newspapers, 448 U.S. at 580; Rivera-Puig, 983 F.2d at 322-23.
27
12
28
The Judicial Council then incorporated the First Amendment requirements
described in NBC Subsidiary into its rule of court governing restrictions on access to
court records. Cal. Rule of Court 2.550.
15
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body of court access law that does not track the federal right; to the extent a state court
2
would be interpreting Government Code § 68150(1)’s requirement of “reasonable
3
access” to trial court records, the state court would be interpreting federal law. See
4
Hartford Courant, 380 F.3d at 100 (denying Pullman abstention in court access case
5
because resolution of the state law would “not illuminate what should happen”).
6
Finally, abstention is improvident because Courthouse News would suffer even
7
further delay of a determination on its First Amendment question while its grievances
8
are heard in state court, thus exacerbating the very constitutional injury that
9
Courthouse News has asked this court to remedy. Porter, 319 F.3d at 492-93.
13
III.
DEFENDANT’S ATTEMPT TO AVOID ADJUDICATION OF HIS DELAYS
IN ACCESS UNDER THE FIRST AMENDMENT AND COMMON LAW HAS
NO MERIT, AND HIS MOTION TO DISMISS COURTHOUSE NEWS’ FIRST
AND SECOND CLAIMS FOR RELIEF SHOULD BE DENIED
14
Conceding as he must that the First Amendment and common law both provide
10
11
12
15
a right of access to civil court records and that such access must be timely, Def’s
16
Memorandum, at 18, Defendant nevertheless asks this Court to dismiss Courthouse
17
News’ First Amendment and common law claims (the First and Second Causes of
18
Action) for failure to state a claim. Defendant’s sole basis for dismissal of these
19
claims is his contention that neither the First Amendment nor the common law
20
“guarantee” a right of same-day access to new civil complaints. As explained below,
21
Defendant’s motion to dismiss these claims is not well taken and should be denied for
22
at least two separate and independent reasons.
23
A.
24
25
Defendant’s Motion Should Be Denied Because The First And Second
Claims For Relief Are Grounded Not Just In The Denial Of Same-Day
Access In Particular, But Also The Overall Delays In General
As a preliminary matter, Courthouse News’ Complaint alleges a violation of the
26
First Amendment and the common law right of access not just from the denial of
27
same-day access in particular, but also because of delays in access in general – delays
28
16
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that, as set forth in the Complaint, commonly last for multiple days or weeks and have
2
recently stretched up to 34 calendar days. Complaint, ¶¶ 29, 30.13
So long as a complaint contains “sufficient factual matter to state a facially
3
4
plausible claim to relief,” dismissal under Federal Rule of Civil Procedure 12(b)(6) is
5
‘“proper only where there is no cognizable legal theory.’” Shroyer v. New Cingular
6
Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. Block,
7
250 F.3d 729, 732 (9th Cir. 2001)). Moreover, “a complaint should not be dismissed
8
for legal insufficiency except where there is failure to state a claim on which some
9
relief, not limited by the request in the complaint, can be granted.” Doe v. United
10
States Dep’t of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985) (quoting Norwalk Core
11
v. Norwalk Redevelopment Agency, 395 F.2d 920, 925-26 (2d Cir. 1968)). Accord,
12
e.g., Massey v. Banning Unified School Dist., 256 F. Supp. 2d 1090, 1092 (C.D. Cal.
13
2003) (“‘It need not appear that plaintiff can obtain the specific relief demanded as
14
long as the court can ascertain from the face of the complaint that some relief can be
15
granted.’”) (quoting Doe, 753 F.2d at 1104).
As Courthouse News will demonstrate as this case proceeds, under the
16
17
particular facts and circumstances of this case, it is entitled to injunctive and
18
declaratory relief that would require Defendant to refrain from his policy of denying
19
its reporter, who visits Ventura Superior at the end of each court day for the specific
20
purpose of viewing newly filed unlimited civil complaints, with access at the end of
21
each court day to the approximately 15 unlimited civil complaints that are filed each
22
day with that court. However, the Complaint is not so limited. As such, Defendant is
23
not entitled to dismissal.
24
25
13
26
27
28
As noted above, although Ventura Superior is not the only California superior court
where Courthouse News has recently been encountering delays, the extent of those
delays, and Defendant’s resistant attitude to working cooperatively with Courthouse
News to resolve them, make Ventura Superior one of the worst courts in the state in
terms of delayed access to new complaints.
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Whether A Denial Of Same Day Access Violates The First Amendment
And Common Law Rights Of Access Is A Factual Inquiry To Be
Determined On A Case-By-Case Basis, And Is Not An Appropriate Basis
For Dismissal Under FRCP 12(b)(6)
4
Determining whether there has been a violation of the First Amendment and/or
1
B.
2
5
common law right of access involves a two-step process. The first step is to determine
6
whether a right of access attaches in the first instance. In the case of the First
7
Amendment right of access, courts use the two-prong inquiry first employed by the
8
Supreme Court in Richmond Newspapers, which examines the considerations of
9
“tradition” and “logic” to determine whether a constitutional right of access exists.
10
448 U.S. at 564-76; accord, e.g., Press-Enterprise II, 478 U.S. at 8-10. In the case of
11
the common law right of access, in the Ninth Circuit, the right has been recognized as
12
applying to all court files except for that very narrow range of records that, for policy
13
reasons, have “traditionally been kept secret.” Kamakana v. City & County of
14
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Times Mirror Co v. United States, 873
15
F.2d 1210 (9th Cir. 1989).
Once it is determined that the First Amendment and common law right of
16
17
access attach to a particular document or class of documents – in this case, unlimited
18
jurisdiction civil complaints filed in a state court – the inquiry shifts to whether the
19
party seeking to restrict access can do so. In order to deny access, the strict standards
20
for overcoming that right of access, as set forth in section I(A) above, must be met.14
21
The same scrutiny is applied where a court seeks to deny access temporarily; as
22
23
24
25
26
27
28
14
In the case of the common law right of access, the presumption of access can be
overcome only on the basis of “‘articulable facts, known to the court, not on the basis
of unsupported hypothesis or conjecture.’” Valley Broad. Co. v. United States District
Court, 798 F.2d 1289, 1293 (9th Cir. 1986) (quoting and adopting the rule of United
States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982) and rejecting a less rigorous
requirement). Moreover, the party seeking to restrict access must have a compelling
reason to do so; a “good cause” showing will not suffice. Kamakana, 447 F.3d at
1180.
18
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numerous state and federal courts have previously recognized, all but de minimis
2
delays in access are the functional equivalent of access denials. E.g., Associated
3
Press, 705 F.2d at 1147 (district court’s withholding of newly filed documents for 48
4
hours after filing as part of a procedure designed to protect the defendant’s Sixth
5
Amendment right to a fair trial was “a total restraint on the public’s first amendment
6
right of access even though the restraint is limited in time”); Globe Newspaper Co. v.
7
Pokaski, 868 F.2d 497, 507 (1st Cir. 1989) (“even a one to two day delay
8
impermissibly burdens the First Amendment”); Jackson, 2009 U.S. Dist. LEXIS
9
62300, at *11 (“the 24 to 72 hour delay in access is effectively an access denial and is,
10
therefore, unconstitutional”); NBC Subsidiary, 20 Cal. 4th at 1220 & n.42 (even
11
temporary denials of access warrant “exacting First Amendment scrutiny”); In re
12
Estate of Hearst, 67 Cal. App. 3d 777, 785, 136 Cal. Rptr. 821 (1977) (even
13
temporary limitations on public access to court records require a “sufficiently strong
14
showing of necessity”).
Defendant conflates this two-part analysis by denying the existence of any
15
16
“First Amendment” right of “same day access.” Having conceded the First
17
Amendment right of access to civil records, the extent to which access may be
18
temporarily denied is an issue for the second part of the analysis. But Defendant
19
disclaims any need to perform that second part of the analysis at all. Such an end run
20
around the First Amendment is not permitted, and does not support dismissal.
21
C.
22
23
24
25
26
27
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Defendant’s Other Arguments In Support Of His Motion To Dismiss Lack
Merit
Although no further analysis is needed to conclude that Defendant’s motion to
dismiss Courthouse News’ first and second claims for relief should be denied, certain
other arguments advanced by Defendant in connection with his motion lack merit and
warrant a response:
A tradition of same-day access in other courts – In paragraphs 10-14 of its
Complaint and the Access Summary attached as Exhibit 1 thereto, Courthouse News
19
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provided examples of some, but not all, of the state and federal courts around the
2
nation that have traditionally and continue to provide reporters who visit each court
3
day with access to newly filed cases at the end of the court day on which they are
4
filed. In an effort to avoid this reality, Defendant characterizes these access practices
5
as mere “courtesies” and takes issue with what he refers to as a “deficient sampling,”
6
arguing that this “does not constitute a ‘tradition’ of anything, much less warrant
7
imposition of a right to ‘same-day access.’” Def’s Memorandum, at 21. Setting aside
8
the fact that for the purposes of this motion, the allegations in the Complaint must be
9
taken as true, Courthouse News has two main responses.
10
First, the tradition of daily, same-day access that Courthouse News describes
11
has not occurred in a vacuum. Quite appropriately, it is one that has developed in
12
those courts that reporters from various media outlets actually visit on a daily basis to
13
review the new civil actions. For the purposes of the Complaint and Access
14
Summary, Courthouse News focused only on those larger courts that its reporters visit
15
on a daily basis.
16
Second, while some courts have, in recent years, imposed administrative tasks
17
between the filing of a new complaint and its being made available to the press that
18
have resulted in delays in access, many courts still do provide this same-day access.
19
Moreover, the fact that delays in access have recently become a problem in some
20
courts does not change the historical provision of same-day access to reporters who
21
visit the court every day, a tradition that Courthouse News has been able to observe
22
firsthand throughout its twenty-one year history. Complaint, ¶¶ 10, 14.
23
Defendant’s suggestion that same-day courts are predominantly e-filing
24
courts is wrong – Defendant also complains that many of the courts providing same-
25
day access “employ e-filing systems that dramatically reduce the processing burdens
26
on clerk office staff,” suggesting that because Ventura Superior is not an e-filing
27
court, this somehow excuses the access delays occurring at his court. Def’s
28
Memorandum, at 9-10, 21. There are two problems with this. First, Defendant
20
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misstates the facts. While federal courts are indeed e-filing courts, in many of those
2
courts – including this Court and the Northern District of California – the case-
3
initiating document, i.e., the complaint, is filed in paper form. See Complaint, ¶ 11 &
4
Exh. 1. Similarly, there are numerous examples of state courts, both in California and
5
throughout the nation, that provide same-day access to new complaints that are not e-
6
filed but are rather filed in the traditional paper form. In California, these superior
7
courts include the San Francisco, Los Angeles, Alameda, Santa Clara, Contra Costa,
8
and the Riverside County superior courts. Complaint, ¶¶ 11-12 & Exh. 1.15
Second, contrary to Defendant’s suggestion, e-filing is not the cure for access
9
10
delays. Courthouse News has observed that in many instances, e-filing has led to
11
access delays where none existed before. See Complaint, ¶ 13 & Exh. 1 (describing
12
the delays in access that followed mandatory e-filing at the Eighth Judicial District
13
Court in Las Vegas, Nevada).
14
Edwards does not entitle Ventura Superior to continue its practice of
15
delayed access – Contrary to Defendant’s suggestion, United States v. Edwards, 823
16
F.2d 111 (5th Cir. 1987), does not stand for the proposition, as he alleges, that there is
17
“no recognized right of ‘same day access’” to court records. Rather, in Edwards, the
18
Fifth Circuit held that the trial court did not err, under the facts and circumstances in
19
that particular case, in delaying release of closed hearing transcripts concerning juror
20
misconduct until after the jury had reached its verdict. In Edwards, a criminal trial
21
was underway and the Court was forced to weigh the First Amendment interests at
22
stake with the “paramount interest in maintaining an impartial jury and its inherent
23
vulnerability.” Id. at 119. Here, there is no “paramount” interest in delaying access
24
that even approaches the interest in protecting an impartial jury, and the Sixth
25
26
27
28
15
At the Los Angeles, Alameda, and Riverside County Superior Courts, complaints
are scanned immediately on intake and made available for viewing in electronic form.
In Santa Clara, Contra Costa, and San Francisco Counties, complaints are made
available for viewing in their as-filed paper form. Complaint, Exh. 1.
21
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Amendment rights of a defendant, and even assuming arguendo that Defendant were
2
to attempt to articulate such an interest, that inquiry is the second part of the First
3
Amendment and common law analysis and would not support dismissal under Rule
4
12(b)(6).
5
The differences between Edwards and the present situation are further
6
confirmed by the Southern District of Texas’ discussion of that case in Jackson.
7
Distinguishing Edwards, the Southern District explained:
Defendants attempt to analogize the 24 to 72 hour delay in access
8
9
in this case to the district court’s refusal to release transcripts of closed
10
proceedings prior to the jury verdict in Edwards. In Edwards, the Fifth
11
Circuit held that the district court did not err in its decision because it
12
reasonably restricted access given the paramount interest in maintaining
13
an impartial jury. ... The Fifth Circuit went on to state that the trial court
14
should avoid unnecessary delay in releasing the record of closed
15
proceedings following the trial. Id. The Court is unpersuaded by
16
Defendants’ argument and finds that the delay in access to newly-filed
17
petitions in this case is not a reasonable limitation on access.
18
Jackson, 2009 U.S. Dist. LEXIS 62300, at *12-13 (2009).
19
The press has a legitimate interest in timely access to new civil case filings –
20
Defendant contends that the press and public do not have legitimate interest in timely
21
access to newly filed civil case-initiating documents. Def’s Memorandum, at 22
22
(“The public’s interest in being on ‘watch’ at the case-initiation stage of a civil case is
23
far less pronounced, if it exists at all, than in pending criminal proceedings”).
24
Defendant’s view ignores the many authorities noted above that recognize the public
25
interest in ensuring timely access to civil proceedings in general, as well as those
26
authorities noting the public interest to civil complaints in particular. E.g., Jackson,
27
2009 U.S. Dist. LEXIS 62300, at *14 (“There is an important First Amendment
28
interest in providing timely access to new case-initiating documents.”); In re NVIDIA,
22
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2008 WL 1859067, at *3 (N.D. Cal. 2008) (“[W]hen a plaintiff invokes the Court’s
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authority by filing a complaint, the public has a right to know who is invoking it, and
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toward what purpose, and in what manner.”); In re Eastman Kodak Co., 2010 WL
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2490982 at *1 (S.D.N.Y. 2010) (a complaint “is a pleading essential to the Court’s
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adjudication of the matter as well as the public’s interest in monitoring the federal
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courts.”).
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IV.
GIVEN DEFENDANT’S ASSERTION OF ELEVENTH AMENDMENT
IMMUNITY, COURTHOUSE NEWS CONSENTS TO THE DISMISSAL OF
ITS STATE LAW CLAIM, AND THAT CLAIM ONLY
The Eleventh Amendment grants a state defendant the power to assert a
sovereign immunity defense, barring a state law claim against it in federal court,
should it choose to do so. Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381,
389, 118 S. Ct. 2047, 2052, 141 L. Ed. 2d 364, 372 (1998). Defendant having now
asserted sovereign immunity over the state law claim included in the Complaint,
Courthouse News consents to the dismissal of the Third Cause of Action.
Defendant’s assertion of sovereign immunity does not, however, affect the
viability of the First or Second Cause of Action, which are both federal law claims. Id.
at 389-90. See Papasan v. Allen, 478 U.S. 265, 277-78, 106 S. Ct. 2932, 92 L. Ed. 2d
209 (1986) (holding that sovereign immunity does not bar claims for prospective relief
against state defendants when such relief is based on ongoing violations of the
plaintiff’s federal law rights).
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CONCLUSION
Defendant’s motion to dismiss and abstain boils down to his positions that he
should not be required to comply with the substantive and procedural requirements of
the First Amendment right of access, and that his lack of compliance should not be
subject to adjudication by a federal court. Neither one has any merit.
Accordingly, Plaintiff Courthouse News Service respectfully requests that
Defendant’s motion to dismiss and abstain be denied as to Courthouse News Service’s
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
SER 148
Case 2:11-cv-08083-R -MAN Document 24 Filed 10/31/11 Page 32 of 32 Page ID
#:499
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First and Second Causes of Action for violations of the First Amendment and
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common law. Defendant having now asserted sovereign immunity over the state law
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claim, Courthouse News consents to the dismissal of the Third Cause of Action, and
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respectfully requests that it be given 30 days to amend its Complaint accordingly.
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Date: October 31, 2011
HOLME ROBERTS & OWEN LLP
RACHEL MATTEO-BOEHM
DAVID GREENE
LEILA KNOX
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By:
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/s/ Rachel Matteo-Boehm
Rachel Matteo-Boehm
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
SER 149
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