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)

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) 268·2000
Fax [phone]
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

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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

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