Courthouse News Service v. Michael Planet

Filing 54

Filed (ECF) Appellant Courthouse News Service citation of supplemental authorities. Date of service: 01/02/2014. [8923054] (RRM)

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Roger Myers Direct: 415-268-1955 roger.myers@bryancavc. com January 2, 2014 Bryan Cave UP 560 Mission Street, 25th Floor Molly Dwyer, Clerk United States Court of Appeals for the Ninth Circuit The James R Browning Courthouse 95 7th Street San Francisco, CA 94119-3939 San Francisco, CA 94105-2994 Tel (415) 268ยท2000 Fax (415) 268-1999 www.bryancave .com Bryan Cave Offices Re: Courthouse News Service v. Michael Planet, Case No. CV11-57187 Argued & Submitted May 8, 2013 Submission Vacated on Referral to Mediation May 13, 2013 Returned from Mediation to Panel June 3, 2013 Panel: Circuit Judges Noonan, Wardlaw & Murguia Atlanta Boulder Charlotte Chicago Co lorado Springs Dallas Dear Ms. Dwyer: Denver Frankfurt In response to Appellee's Rule 280) letter, we write to explain why the two decisions Appellee cites actually support Appellant Courthouse News Service. Hamb urg Hong Kong Irvine Appellee's view that Sander v. State Bar, 2013 Cal. LEXIS 10183, "confirms" access to judicial records involves a matter of state sovereignty governed by "state access law" - and subject to Pullman abstention - overlooks that Sander said exactly the opposite. Jefferson City Kansas City London Los Angeles New York As Sander explained, "the common law right of public access" to non-judicial records - to which Appellee refers - differs from the "'parallel, but distinct' right of access based on the First Amendment" that supplanted the common law with respect to '''judicial .. . records.'" Id. at *14-15,40-41 n .7 (citing NBC Subsidiary (KNBe-TV) v. Superior Court, 20 Cal. 4th 1178 (1999)) . Sander did not involve court records, but rather held a public "interest in the activities of the State Bar in administering the bar exam and admissions" supported common law access to its records. Id. at *54-55. As for Beeman v. Anthem Prescription Mgt., 2013 Cal. LEXIS 10182, Appellee overlooks the passage undermining his point: "'[M]erely because our provision is worded more expansively and has been interpreted as more protective than the First Amendment ... does not mean that it is broader than the First Amendment in all its applications.'" Id. at *19. As Sander and NBC Subsidiary make clear, access to judicial records is an application where state law mirrors the First Amendment. And even where the state provision may be broader - such as the commercial speech in Beeman - California courts "lookD to First Amendment case law" to "inform [their] determination .. . under article 1." Id. at *31,48. HROSAF\84861 .1 Paris Phoen ix San Franc isco Shanghai Singapore St. Louis Washington, DC Bryan Cave International Consulting A TRADE AND CUSTOMS CONSULTANCY Bangkok Bei jing Jakarta Kuala Lu mpur Mani la Shanghai Singapore Tokyo Molly Dwyer, Clerk January 2, 2014 Page 2 Brvan Cave llP Another decision issued after oral argument confltmed our point, in Reply 13 n. 7, that the commercial speech doctrine does not apply to Courthouse News. In holding the "press and public'S right of access" to complaints recognized in Courthouse News Service v. Jackson "is distinguishable" from "commercial speech," Sullo & Bobbitt v. Abbott, 2013 U.S. Dist. LEXIS 67387, *14-16 n.7 (N.D. Tex. May 13, 2013), rejected Appellee's contrary reading of its prior decision. Answering Brief 20 n.4 & 32. Very truly yours, J~A cc: Robert A. Naeve, Esq. Counsel for Appellee Michael Planet HROSAF\8486!.!

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