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)

Rachel Matteo-Boehm
Direct: 415-268-1996
[e-mail]

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 [phone]
Fax [phone]
www.bryancave.com

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

www.bryancaveconsulting.com
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

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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

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