Courthouse News Service v. Michael Planet

Filing 53

Filed (ECF) Appellee Michael D. Planet citation of supplemental authorities. Date of service: 12/26/2013. [8916768] (RAN)

JONES DAY
3161 MICHELSON DRIVE • SUITE 800 • IRVINE, CA 92612
TELEPHONE: [phone] • FACSIMILE: [phone]

December 26, 2013
VIA CM / ECF FILING
Ms. Molly C. Dwyer, Clerk of the Court
United States Court of Appeals for the Ninth Circuit
The James R. Browning Courthouse
95 7th Street
San Francisco, California 94103
Re:

Courthouse News Service v. Planet
Case No. 11-57187
Argued May 8, 2013
Circuit Judges Noonan, Wardlaw and Murguia

Dear Ms. Dwyer:
Appellee Michael Planet provides notice of the following additional authorities pursuant
to Federal Rule of Appellate Procedure 28(j).
1.
Access To Court Records Is An Important State Interest. Appellees’ Answering
Brief explains that Pullman’s “sensitive social policy” prong protects state sovereignty over
matters of local concern, including administration of California’s judicial system, and access to
court documents.
The California Supreme Court’s opinion in Sander v. State Bar of California, 2013 Cal.
LEXIS 10183 (Dec. 19, 2013) confirms this approach. Sander explains that California’s
Legislature has been regulating access to public records since 1872, id. at *25-39, and that the
right of access to judicial records is an important state interest, id. at *39-40. Sander also
explains that state access laws must be interpreted “in light of article I section 3 subdivision (b)
of the California Constitution,” id. at *24-25; and that state courts must balance competing
interests in ruling on certain public record access claims, id. at *53-60.
2.
The “Mirror Image” Rule Does Not Apply. Appellant argues that Pullman
abstention is unnecessary in part because a “mirror image” rule requires that Article I, section
3(b) of the California Constitution and California Rules of Court 2.500 and 2.503 be interpreted
consistently with the First Amendment.

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JONES DAY

Ms. Molly C. Dwyer
December 26, 2013
Page 2
However, California’s rules regarding access to judicial documents must also be
interpreted consistently with free speech rights contained in Article I section 2(a) of California’s
Constitution. In Beeman v. Anthem Prescription Management, LLC, 2013 Cal. LEXIS 10182
(Dec. 19, 2013), the California Supreme Court confirmed that state law does not mirror federal
law. It explained that “[t]he state Constitution’s free speech provision is at least as broad as and
in some ways is broader than” its federal counterpart, and that “federal decisions interpreting the
First Amendment are not controlling” in California, id. at *19 (citations and internal quotations
omitted).

9th Circuit Case Number(s) 11-57187
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CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
.
Dec 26, 2013
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
Signature (use "s/" format)

s/ Robert A. Naeve

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

Signature (use "s/" format)