Courthouse News Service v. Michael Planet

Filing 51

Filed (ECF) Appellant Courthouse News Service citation of supplemental authorities. Date of service: 12/20/2013. [8911283] (REM)

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Rachel Matteo-Boehm Direct: 415-268-1996 December 20,2013 Bryan Cave l.l.P 560 Mission Street. 25th Floor Molly Dwyer, Clerk United States Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 San Francisco, CA 94105-2994 Tel (415) 268-2000 Fax (415) 268-1999 Courthouse News Service v. Michael Planet, Case No. CVll-57187 Bryan Cave Olliee. Argued & Submitted May 8, 2013 Submission Vacated on Referral to Mediation May 13, 2013 Returned from Mediation to Panel June 3, 2013, But Not Yet Resubmitted Panel: Judges Noonan, Wardlaw & Murguia Re: Atlanta Boulder Charlotte Chicago Colorado Springs Dallas Dear Ms. Dwyer: Denver Frankfurt Pursuant to FRAP 28Q), Appellant Courthouse News Service writes to inform the panel the Supreme Court last week unanimously "cautioned ... that federal courts ordinarily ... should not 'refus[e] to decide a case in deference to the States.'" Sprint Communs. v. Jacobs, 2013 U.S. LEXIS 9019, *7-8 (Dec. 10,2013) (quoting New Orleans Public Service, Inc. v. Couna! ofCz!y of New Orleans, 491 U.S. 350,368 (1989) ("NOPSF')). Hamburg Hong Kong Irvine Jefferson City Kansas City London Los Angeles The Court rejected the Eighth Circuit's view that Younger abstention is warranted by Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982) "whenever three conditions are met: There is (1) 'an ongoing state judicial proceeding, which (2) implicates important state interests, and (3) ... provide[s] an adequate opportunity to raise [federal] challenges.'" Sprint, 2013 U.S. LEXIS 9019 at *21. The Supreme Court reversed because "[d]ivorced from their quasi-criminal context, the three Middlesex conditions would extend Younger to virtually all" cases "where a party could identify a plausibly important state interest." Id. at *23. Rather, the Court "stressed," Younger only "extends to the three 'exceptional circumstances' identified in NOPSI, but no further." Id. at *8,23. New York Paris Phoenix San Francisco Shanghai Singapore St. Louis Washington, DC Bryan Cave International A TRADE AND Consulting CUSTOMS Bangkok As the O'Shea abstention at issue in this case is a branch of Younger, Appellee's reliance on Middlesex (at AB 54, 56-57) is unavailing - and reversal is required because "none of the [NOPSl] circumstances" exist. Id. at *8. This case involves no "criminal" or "civil enforcement proceedings." Ld. As for the third circumstance, enjoining a clerk's administrative policy of denying access to complaints until after processing does not implicate "'the state courts' ability to perform their judicial SFOlDOCS\175860.2 CONSULTANCY J a ka rta Kuala Lumpur Manila Shanghai Singapore Tokyo Molly Dwyer, Clerk December 20,2013 Page 2 functions,'" let alone "interfer[e] with ... 'civil proceedings involving certain orders ... uniquely in furtherance'" of that ability, as required. Id. at *17 (emphasis added). That conclusion is further supported by a recent decision rejecting O'Shea abstention because the "concerns" underlying 0 'Shea and Younger "are simply not present" when "[p]laintiffs seek to enjoin the current procedures" ancillary to state court proceedings. Rqy v. INdicia! Corr. Serus., 2013 U.S. Dist, LEXIS 139480, *44 (N.D. Ala. Sept. 26, 2013) (procedures for collecting court costs and fines). Very truly yours, Rachel Matteo-Boehm cc: Robert A. Naeve, Esq. Counsel for Appellee Michael Planet SFOlDOCS1175860.2

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