Courthouse News Service v. Michael Planet

Filing 7

Submitted (ECF) Opening brief for review. Submitted by Appellant Courthouse News Service. Date of service: 05/29/2012. [8193685]--[COURT UPDATE: Attached corrected brief. Resent NDA. 06/01/2012 by RY] (REM)

U.S. Court of Appeals Docket No. 11-57187
___________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________________________________
COURTHOUSE NEWS SERVICE,
Plaintiff/Appellant,
vs.
MICHAEL PLANET, in his official capacity as Court Executive Officer/ Clerk of
the Ventura County Superior Court,
Defendant/Appellee.
___________________________________________________________
On Appeal from a Decision of the United States District Court
for the Central District of California
Case No. CV11-08083 R
The Honorable Manuel Real
___________________________________________________________
OPENING BRIEF OF APPELLANT
COURTHOUSE NEWS SERVICE
___________________________________________________________
Roger Myers, Esq.
Rachel Matteo-Boehm, Esq.
David Greene, Esq.
Leila Knox, Esq.
BRYAN CAVE LLP
560 Mission Street, 25th Floor
San Francisco, CA 94105-2994
Tel: [phone]
[e-mail]
Attorneys for Plaintiff-Appellant
COURTHOUSE NEWS SERVICE
#79656 v1 saf

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiff-Appellant
Courthouse News Service hereby certifies that it is a privately held corporation
with no parent corporation and that no publicly held corporation holds more than
10 percent of its stock.
DATED: May 29, 2012

BRYAN CAVE LLP
ROGER MYERS
RACHEL MATTEO-BOEHM
DAVID GREENE
LEILA KNOX
By: /s/ Rachel Matteo-Boehm
Rachel Matteo-Boehm
Attorneys for Plaintiff-Appellant
Courthouse News Service

#79656 v1 saf

TABLE OF CONTENTS

STATEMENT OF JURISDICTION.......................................................................1
STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................2
INTRODUCTION ..................................................................................................4
STATEMENT OF THE CASE...............................................................................7
STATEMENT OF FACTS .....................................................................................11
A. A Tradition Of Same-Day Access To New Civil Complaints ................12
B.

The Ventura Clerk’s Policy Of Denying Access Until After
“Requisite Processing,” And The Resulting Lengthy Delays
In Access .................................................................................................14

SUMMARY OF THE ARGUMENT .....................................................................17
I.

FEDERAL COURTS SHOULD RARELY ABSTAIN, ESPECIALLY
IN SUITS BROUGHT UNDER 42 U.S.C. § 1983; PULLMAN
ABSTENTION IS GENERALLY INAPPROPRIATE IN FIRST
AMENDMENT CASES; AND THE DISTRICT COURT’S DECISION
CANNOT SURVIVE UNDER ANY STANDARD OF REVIEW, LET
ALONE THE TYPE OF EXACTING REVIEW ACCORDED
ABSTENTIONS UNDER PULLMAN OR O’SHEA......................................19

II.

THE DISTRICT COURT ERRED IN ABSTAINING UNDER
PULLMAN IN THIS FIRST AMENDMENT CASE THAT
INVOLVED NO UNCERTAIN STATE LAW QUESTION
INDEPENDENT OF THE FIRST AMENDMENT .......................................23
A. The First Pullman Factor Is Not Satisfied Because Federal
Courts Are The Appropriate Forum To Hear First Amendment
Cases........................................................................................................26

i
#79656 v1 saf

B.

Even If This Were Not A First Amendment Case, The Second
And Third Factors Are Not Satisfied Because There Is No
Uncertain Issue Of State Law That Could Avoid Or Alter The
Federal Question......................................................................................27
1.

2.

State Law Provisions That Mirror Federal Constitutional
Standards Do Not Meet The Second Pullman Factor .....................29

State Laws That Are Not Uncertain Because State Courts
Have Held They Must Be Construed Pursuant To Federal
Standards Do Not Satisfy The Third Pullman Factor .............................32

III. O’SHEA DOES NOT APPLY BECAUSE THE TIMELY ACCESS
TO COMPLAINTS THAT COURTHOUSE NEWS SEEKS IS NO
MORE THAN WHAT OTHER COURTS ALREADY PROVIDE
AND WHAT ANOTHER FEDERAL DISTRICT COURT HAS
PREVIOUSLY ORDERED, AND WOULD NOT INTERFERE
WITH THE STATE COURT’S ADJUDICATION OF FUTURE
CASES ON THE MERITS .............................................................................35
A. The O’Shea Doctrine Is Reserved For Cases Where The Relief
Sought Would Involve A Major And Ongoing Intrusion By The
Federal Courts Into Future State Court Adjudicative Proceedings.........36
B.

A Complaint Against A State Court Clerk Seeking To Prevent
Him From Enforcing His Administrative Policies Resulting In
Denials Of Access To Newly-Filed Civil Court Complaints Is Not The
Type Of Action To Which O’Shea Abstention May Be Properly Applied
.................................................................................................................43

C.

Federal Courts Have Not Abstained From Prior Actions Raising First
Amendment Challenges To State Court Restrictions On Access ...........46

IV. THE CASE SHOULD BE REMANDED FOR ADJUDICATION ON
THE MERITS OF COURTHOUSE NEWS’ WELL-PLED 42 U.S.C.
§ 1983 CLAIM FOR DENIAL OF ITS FIRST AMENDMENT RIGHT
OF ACCESS....................................................................................................48
CONCLUSION .......................................................................................................54
STATEMENT OF RELATED CASES ..................................................................55

ii
#79656 v1 saf

CERTIFICATE OF COMPLIANCE ......................................................................55
ADDENDUM
CERTIFICATE OF SERVICE

iii
#79656 v1 saf

TABLE OF AUTHORITIES
FEDERAL CASES
Allen v. McCurry,
449 U.S. 90 (1980)........................................................................ 23
Almodovar v. Reiner,
832 F.2d 1138 (9th Cir. 1987) ..........................................20, 21, 26
AmerisourceBergen Corp. v. Roden,
495 F.3d 1143 (9th Cir. 2007) ................................................ 20, 38
Amfac Mortg. Corp. v. Arizona Mall of Tempe, Inc.,
583 F.2d 426 (9th Cir. 1978) ........................................................ 22
Associated Press v. U.S. Dist. Court,
705 F.2d 1143 (9th Cir. 1983) ......................................4, 50, 51, 53
Babbitt v. United Farm Workers Nat’l Union,
442 U.S. 289 (1979)................................................................ 33, 34
Badham v. U.S. Dist. Court,
721 F.2d 1170 (9th Cir. 1983) ...................................................... 33
Baggett v. Bullitt,
377 U.S. 360 (1964)...................................................................... 23
Bank of America Nat’l Trust & Sav. Ass’n v.
Summerland Cnty. Water Dist.,
767 F.2d 544 (9th Cir. 1985) ........................................................ 29
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)...................................................................... 49
Bickham v. Lashof,
620 F.2d 1238 (7th Cir. 1980) ...................................................... 46
Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585 (8th Cir. 2008) ........................................................ 22
iv
#79656 v1 saf

Brockett v. Spokane Arcades, Inc.,
472 U.S. 491 (1985)...................................................................... 20
Brown & Williamson Tobacco Corp. v. F.T.C.,
710 F.2d 1165 (6th Cir. 1983) ...................................................... 50
Canton v. Spokane Sch. Dist. No. 81,
498 F.2d 840 (9th Cir. 1974) ........................................................ 28
In re Charlotte Observer,
882 F.2d 850 (4th Cir. 1989) .................................................. 52, 53
Connecticut Magazine v. Moraghan,
676 F. Supp. 38 (D. Conn. 1987).................................................. 48
Cox Broad. Corp. v. Cohn,
420 U.S. 469 (1975)...................................................................... 51
In re Cont’l Ill. Sec. Litig.,
732 F.2d 1302 (7th Cir. 1984) ...................................................... 50
Courthouse News Service v. Jackson,
2009 U.S. Dist. LEXIS 62300
(S.D. Tex. July 20, 2009)......................5, 6, 7, 8, 24, 36, 44, 50, 53
Courthouse News Service v. Jackson,
2010 U.S. Dist. LEXIS 74571
(S.D. Tex. Feb. 26, 2010) ......................................................... 5, 44
Cousins v. Lockyer,
568 F.3d 1063 (9th Cir. 2009) ...................................................... 22
Doe v. Stegall,
653 F.2d 180 (5th Cir. 1981) ........................................................ 50
Dombrowski v. Pfister,
380 U.S. 479 (1965)...................................................................... 24

v
#79656 v1 saf

E.T. v. Cantil-Sakauye,
2012 U.S. App. LEXIS 5147
(9th Cir. March 12, 2012) ...............................22, 36, 39, 40, 43, 45
El Vocero de Puerto Rico v. Puerto Rico,
508 U.S. 147 (1993)...................................................................... 50
Ellis v. City of La Mesa,
990 F.2d 1518 (9th Cir. 1993) ................................................ 33, 34
England v. La. State Bd. of Med. Exam’rs,
375 U.S. 411 (1964)...................................................................... 19
Examining Bd. v. Flores de Otero,
426 U.S. 572 (1976)...................................................................... 29
FOCUS v. Allegheny Cnty. Court of Common Pleas,
75 F.3d 834 (3d Cir. 1996) ........................................................... 48
Family Div. Trial Lawyers v. Moultrie,
725 F.2d 695 (D.C. Cir. 1984)................................................ 22, 42
Fireman’s Fund Insurance Co. v. City of Lodi,
302 F.3d 928 (9th Cir. 2002) ........................................................ 21
Fort Wayne Journal-Gazette v. Baker,
788 F. Supp. 379 (N.D. Ind. 1992) ............................................... 48
Gerstein v. Pugh,
420 U.S. 103 (1975)..........................................................44, 45, 46
Gilbertson v. Albright,
381 F.3d 965 (9th Cir. 2004) .................................................. 21, 38
Globe Newspaper Co. v. Pokaski,
868 F.2d 497 (1st Cir. 1989)..................................................... 5, 53
Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982)..........................................................31, 49, 53

vi
#79656 v1 saf

Green v. City of Tucson,
255 F.3d 1086 (9th Cir. 2001) ................................................ 21, 46
Grove Fresh Distribs. v. Everfresh Juice Co.,
24 F.3d 893 (7th Cir. 1994) ....................................4, 24, 49, 50, 52
Habich v. City of Dearborn,
331 F.3d 524 (6th Cir. 2003) .................................................. 45, 46
Harman v. Forssenius,
380 U.S. 528 (1965)................................................................ 33, 34
Hartford Courant Co. v. Pellegrino,
380 F.3d 83 (2d Cir. 2004) .................................................6, 46, 47
Hawaii Housing Auth. v. Midkiff,
467 U.S. 229 (1984)................................................................ 29, 34
Heath v. Cleary,
708 F.2d 1376 (9th Cir. 1985) ...................................................... 28
Hillery v. Rushen,
720 F.2d 1132 (9th Cir. 1983) ...................................................... 33
Hobbs v. Thompson,
448 F.2d 456 (5th Cir. 1971) ........................................................ 24
J-R Distribs. v. Eikenberry,
725 F.2d 482 (9th Cir. 1984) ................................20, 23, 24, 25, 28
Kaufman v. Kaye,
466 F.3d 83 (2d Cir. 2006) .................................................... 40, 41
Kusper v. Pontikes,
414 U.S. 51 (1973)........................................................................ 27
L.H. v. Jamieson,
643 F.2d 1351 (9th Cir. 1980) ...................................................... 45

vii
#79656 v1 saf

Leigh v. Salazar,
2012 U.S. App. LEXIS 7731 (9th Cir. April 16, 2012) .....4, 51, 53
Los Angeles Cnty. Bar v. Eu,
979 F.2d 697 (9th Cir. 1992) ..............................................6, 39, 43
Luckey v. Miller,
976 F.2d 673 (11th Cir. 1992) ................................................ 39, 41
Lugosch v. Pyramid Co.,
435 F.3d 110 (2d Cir. 2006) ......................................................... 25
McNeese v. Bd. of Educ.,
373 U.S. 668 (1963)................................................................ 29, 30
Middlesex Cnty. Ethics Comm’n v.
Garden State Bar Ass’n,
457 U.S. 423 (1982)...................................................................... 38
Midkiff v. Tom,
702 F.2d 788 (9th Cir. 1983) ........................................................ 34
Miofsky v. Superior Court,
703 F.2d 332 (9th Cir. 1983) ........................................................ 19
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1 (1983).......................................................................... 20
In re NVIDIA Corp. Deriv. Litig.,
2008 U.S. Dist. LEXIS 120077 (N.D. Cal. April 23, 2008)..... 4, 51
New Orleans Public Serv., Inc. v.
Council of New Orleans (“NOPSI”),
491 U.S. 350 (1989)................................................................ 19, 20
New York Civil Liberties Union v. New York City Transit Auth.,
2011 U.S. App. LEXIS 26087 (2d Cir. July 20, 2011) ................ 50
Newcal Indus., Inc. v. Ikon Office Solution,
513 F.3d 1038 (9th Cir. 2008) ...................................................... 22
viii
#79656 v1 saf

O’Shea v. Littleton,
414 U.S. 488 (1974)...............................................................passim
Parker v. Turner,
626 F.2d 1 (6th Cir. 1980) ................................................21, 45, 46
Pearl Inv. Co. v. City & Cnty. of San Francisco,
774 F.2d 1460 (9th Cir. 1985) ...................................................... 26
Phoenix Newspapers, Inc. v. U.S. Dist. Court,
156 F.3d 940 (9th Cir. 1998) ........................................................ 52
Playtime Theaters, Inc. v. City of Renton,
748 F.2d 527 (9th Cir. 1984) ........................................................ 24
Porter v. Jones,
319 F.3d 483 (9th Cir. 2003) ..................1, 6, 20, 23, 24, 25, 26, 27
Potrero Hills Landfill, Inc. v. Cnty. of Solano,
657 F.3d 876 (9th Cir. 2011) ............................................19, 21, 37
Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”),
464 U.S. 501 (1984)...................................................................... 49
Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”),
478 U.S. 1 (1986)..............................................................31, 49, 52
Publicker Indust. v. Cohen,
733 F.2d 1059 (3d Cir. 1984) ....................................................... 50
Pue v. Sillas,
632 F.2d 74 (9th Cir. 1980) ........................................29, 30, 32, 33
Pulliam v. Allen,
466 U.S. 522 (1984)...................................................................... 21
Railroad Comm’n v. Pullman Co.,
312 U.S. 496 (1941)...............................................................passim

ix
#79656 v1 saf

Rancho Palos Verdes Corp. v. City of Laguna Beach,
547 F.2d 1092 (9th Cir. 1976) ...................................................... 26
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980)................................................................ 27, 49
Ripplinger v. Collins,
868 F.2d 1043 (9th Cir. 1989) ................................................ 17, 27
Rivera-Puig v. Garcia-Rosario,
983 F.2d 311 (1st Cir. 1992)...............................................6, 27, 47
Rushford v. New Yorker Magazine, Inc.,
846 F.2d 249 (4th Cir. 1988) ........................................................ 50
Sable Commc’ns of Cal., Inc. v. Pacific Tel. & Tel. Co.,
890 F.2d 184 (9th Cir. 1989) ............................................17, 24, 45
In re Search Warrant,
923 F.2d 324 (4th Cir. 1991) ........................................................ 48
Smelt v. Cnty. of Orange,
447 F.3d 673 (9th Cir. 2006) .................................................. 21, 26
Standard Chartered Bank Int’l Ltd. v. Calvo,
757 F. Supp. 2d 258 (S.D.N.Y. 2010) .......................................... 51
Steffel v. Thompson,
415 U.S. 452 (1974)................................................................ 19, 44
Stephens v. Tielsch,
502 F.2d 1360 (9th Cir. 1974) ................................................ 29, 32
Tarter v. Hury,
646 F.2d 1010 (5th Cir. 1981) ..........................................39, 42, 43
TwoRivers v. Lewis,
174 F.3d 987 (9th Cir. 1999) ........................................................ 22

x
#79656 v1 saf

United States v. Morros,
268 F.3d 695 (9th Cir. 2001) ........................................................ 48
Vassiliades v. Israely,
714 F. Supp. 604 (D. Conn. 1989)................................................ 51
Wolfson v. Brammer,
616 F.3d 1045 (9th Cir. 2010) ...................................................... 27
Younger v. Harris,
401 U.S. 37 (1971).................................................................passim
Zwickler v. Koota,
389 U.S. 241 (1967)................................................................ 23, 25
STATE CASES
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
20 Cal. 4th 1178 (1999) ........................................29, 30, 31, 34, 50
FEDERAL STATUTES AND RULES
28 U.S.C. § 1291................................................................................... 1
28 U.S.C. § 1292(a)(1).......................................................................... 1
28 U.S.C. § 1331................................................................................... 1
28 U.S.C. § 1334................................................................................... 1
28 U.S.C. § 2201................................................................................... 1
42 U.S.C. § 1983..........................................................................passim
FRAP 4(a)(1)(A) ................................................................................... 1
FRAP 28(a)(4)....................................................................................... 1
FRCP 12(b)(6) ................................................................................... 22

xi
#79656 v1 saf

Ninth Cir. Rule 28-2.2 .......................................................................... 1
Ninth Cir. Rule 28-2.7 .......................................................................... 3
STATE STATUTES AND RULES
Cal. Code Civ. Proc. § 124 ........................................................... 30, 31
Cal. Rule of Court 2.550 ...........................................................7, 30, 31
Government Code § 68150 .................................................9, 30, 31, 32

xii
#79656 v1 saf

STATEMENT OF JURISDICTION
Pursuant to Federal Rule of Appellate Procedure 28(a)(4) and Ninth Circuit
Rule 28-2.2, Plaintiff-Appellant Courthouse News Service (“Courthouse News”)
submits the following statement of jurisdiction:
a.

Courthouse News’ claims arise under the First and Fourteenth

Amendments to the United States Constitution, federal common law, and the Civil
Rights Act, 42 U.S.C. § 1983 et seq. The district court thus had subject matter
jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights),
and 2201 (declaratory relief).
b.

Courthouse News appeals the granting of the Motion to Dismiss and

Abstain of Defendant-Appellee Michael Planet (the “Ventura Clerk”) and resulting
dismissal of its entire complaint. This Court has jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 1292(a)(1). Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003).
c.

The District Court granted the Ventura Clerk’s motion and dismissed

Courthouse News’ complaint on November 30, 2011. ER 1-2. Courthouse News
filed its notice of appeal on December 15, 2011. ER 13-14. This appeal is timely
pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A).1
d.

This appeal is from a final order that disposed of all parties’ claims.

1

Throughout this brief, citations to the record are to the consecutively paginated
Excerpts of Record (“ER”), which include the pertinent portions of the Clerk’s
Record and the Reporter’s Transcript of the hearing on the motion to dismiss.
1
#79656 v1 saf

STATEMENT OF ISSUES PRESENTED FOR REVIEW
1.

In a case asserting a violation of the First Amendment right of access

to civil complaints, did the district court err in dismissing Courthouse News’
complaint pursuant to the abstention doctrine announced in Railroad Comm’n v.
Pullman Co., 312 U.S. 496 (1941), given that the Supreme Court and this Circuit
have held Pullman abstention is generally not appropriate in First Amendment
cases, the first Pullman factor is almost never present in First Amendment cases,
and the second and third factors cannot be satisfied where, as here, the California
Supreme Court has made it clear that state law access provisions are co-extensive
with the First Amendment right of access? ER 2, 8-9, 28.
2.

In a case seeking declaratory and injunctive relief prohibiting a state

court clerk from enforcing his policies that deny access to newly filed civil court
complaints for days and weeks in violation of the First Amendment right of access,
did the district court err in abstaining under the doctrine announced in O’Shea v.
Littleton, 414 U.S. 488 (1974), a seldom-used and narrow application of Younger
v. Harris, 401 U.S. 37 (1971), where the requested relief was no more than the
access that is already provided by numerous other state and federal courts, has
previously been granted by another federal district court in a recent case, and
would neither intrude upon the operations of the state court nor interfere with the
adjudication of the merits of any future state court proceeding? ER 2, 7-8, 28.

2
#79656 v1 saf

Pursuant to Ninth Circuit Rule 28-2.7, pertinent constitutional and statutory
authority is included in the addendum bound with this brief.

3
#79656 v1 saf

INTRODUCTION
At issue in this appeal is the continued availability of a federal forum
through 42 U.S.C. § 1983 to address systematic violations by a state court of the
First Amendment right of access to public court records. Under the district court’s
reasoning, parties seeking to prevent or cure such violations cannot seek redress in
federal court, but must instead be left to enforce their rights in the very state courts
that are denying them. This result undermines the First Amendment right of access
itself, a right this Court has consistently upheld and is critical to our system of
open government, “a hallmark of our democracy since our nation’s founding.”
Leigh v. Salazar, 2012 U.S. App. LEXIS 7731, *13 (9th Cir. April 16, 2012).
The specific records at issue here are state court civil complaints, “the means
by which a plaintiff invokes the authority of the court.” In re NVIDIA Corp. Deriv.
Litig., 2008 U.S. Dist. LEXIS 120077, *11 (N.D. Cal. April 23, 2008). The
Ventura Clerk’s policies deny access to most of these records for days and weeks
on end, in violation of Courthouse News’ First Amendment right of “immediate
and contemporaneous” access to civil court records. Grove Fresh Distribs. v.
Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994). This injury is not cured by
later disclosure; as this Court has recognized, even short delays are “a total
restraint” on the First Amendment right of access. Associated Press v. U.S. Dist.
Court, 705 F.2d 1143, 1147 (9th Cir. 1983) (48-hour delay unconstitutional);

4
#79656 v1 saf

accord Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 507 (1st Cir. 1989) (“even
a one to two day delay impermissibly burdens the First Amendment”).
This action advances a simple idea: that new civil complaints filed
throughout the day should be available for public view by the end of the same day
so journalists can report on them, thus informing interested persons of the fact that
the court’s powers have been invoked with respect to a new civil controversy. The
access sought by Courthouse News is no more than the same timely access to
newly filed civil complaints that other state and federal courts in California and
across the nation already provide, and that has been traditionally provided to
journalists who visit the courts every day.
When access barriers do arise, the media often can resolve them through
cooperative discussions with court staff. Occasionally, however, litigation is
necessary to enforce the federal constitutional right of timely access to state court
records, and in those instances, 42 U.S.C. § 1983 and the federal courts serve a
critical role. Indeed, just two years ago, a federal district court in Texas granted
Courthouse News the very relief against a state court clerk that Courthouse News
seeks here. Courthouse News Service v. Jackson, 2009 U.S. Dist. LEXIS 62300,
*14-15 (S.D. Tex. July 20, 2009) (granting preliminary injunction requiring court
clerk to cease delaying access to new civil petitions and requiring same-day
access), 2010 U.S. Dist. LEXIS 74571, *3-6 (S.D. Tex. Feb. 26, 2010) (agreed

5
#79656 v1 saf

permanent injunction). And Jackson is hardly the only case involving systemic
denials of the First Amendment right of access where federal courts ordered
equitable relief against state courts, including cases in which the appellate courts
refused to abstain. See, e.g., Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d
Cir. 2004); Rivera-Puig v. Garcia-Rosario, 983 F.2d 311 (1st Cir. 1992).
Yet despite all this, the district court granted the Ventura Clerk’s motion to
dismiss Courthouse News’ complaint through an unprecedented widening of two
narrow abstention doctrines. But abstention under Pullman or O’Shea is not
appropriate in this First Amendment access case, the former because, inter alia,
“constitutional challenges based on the first amendment right of free expression are
the kind of cases that federal courts are particularly well-suited to hear,” Porter,
319 F.3d at 492 (quotation omitted), and the latter because enforcing the right of
access is ancillary to and does not interfere with adjudication on the merits of state
court cases. See Los Angeles Cnty. Bar v. Eu, 979 F.2d 697, 703 (9th Cir. 1992).
More fundamentally, it simply cannot be that federal courts are unavailable
to remedy ongoing denials of the First Amendment right of access to a critical
class of public indisputably public records. The district court thus erred in
abstaining, and its order of dismissal must be reversed to preserve the federal
forum for enforcement of First Amendment rights of access and the Civil Rights
Act, 42 U.S.C. § 1983.

6
#79656 v1 saf

STATEMENT OF THE CASE
The underlying case, filed on September 29, 2011, and brought under 42
U.S.C. § 1983, was based primarily on the First Amendment right of access to
court records (the first cause of action in the complaint). ER 71. In addition,
Courthouse News brought a second cause of action for denial of the common law
right of access. ER 72.2 Courthouse News sought straightforward relief: a
declaratory judgment and injunction prohibiting the Ventura Clerk from continuing
his intransigent policy of denying access to almost all newly filed complaints in
unlimited jurisdiction cases on the same day they are filed – and, in most instances,
for several days, if not weeks, after they are filed – even though, because they are
newly filed, those public documents are right there in the intake area and would
otherwise be available for viewing. ER 60-74.
As in the Jackson case, Courthouse News did not seek to require the Ventura
court to subject each individual complaint filed with it to a case-by-case
adjudication of when it should be made public, nor did it ask the district court to
exercise continuing oversight over the Ventura Clerk or the Ventura County
Superior Court. ER 60-74. It also did not seek an order requiring the Ventura
Clerk to devote additional funds or staff to the task of processing new complaints

2

Courthouse News consented to the dismissal of its third cause of action, for
violation of California Rule of Court 2.550, after the Ventura Clerk invoked his
Eleventh Amendment immunity. ER 2, 7, 20.
7
#79656 v1 saf

or providing timely access to them. ER 60-74, 116-17. To the contrary,
Courthouse News sought to require the Ventura Clerk to cease his policy of
prohibiting access to newly filed complaints until after they have been processed.
ER 60-74, 113-17. And, as in Jackson, Courthouse News did not purport to dictate
the particular procedures that the Ventura Clerk should use to ensure that
journalists have timely access to new complaints even if processing was still
underway, ER 60-74, 99, although it did provide numerous examples of courts in
California and across the country that are doing just that. ER 63-65, 69, 75-92, 99112, 116. Together with its complaint, Courthouse News filed a motion for a
preliminary injunction and supporting declarations. ER 58-59, 123.
On October 20, 2011, the Ventura Clerk moved to dismiss and abstain. ER
27-29. In his motion, the Ventura Clerk acknowledged the existence of a First
Amendment right of access to the civil complaints, and that such access must be
timely. ER 25. Notwithstanding this, however, the Ventura Clerk contended that
the matter should be left to the state courts on the basis of Pullman abstention
because, as he claimed, there were at least two unsettled questions of state law that
could “obviate the need for this action in its entirety.” ER 24. As for O’Shea
abstention, the Ventura Clerk argued that the requested relief sought “the
restructuring” of the court and an order “dictating state or local budget priorities,”
ER 23, an argument contradicted by Courthouse News’ complaint and exhibits

8
#79656 v1 saf

thereto, which showed that providing timely access does not require significant
expenditures but rather is largely a matter of will. ER 63-65, 69, 76-92, 116-17.
The Ventura Clerk also moved to dismiss on the grounds that the complaint failed
to state a claim for which relief could be granted, arguing that the same-day access
to new complaints provided in other courts was a mere “courtesy” and that there
was no legal basis for the relief Courthouse News requested. ER 22, 28. On
October 31, 2011, the Ventura Clerk filed his opposition to Courthouse News’
preliminary injunction motion, together with supporting declarations. ER 126.
In a ruling from the bench on November 28, 2011, the district court granted
the Ventura Clerk’s motion on both abstention grounds. As to Pullman abstention,
the district court concluded that the first of the three Pullman factors – whether the
case touches on a sensitive area of social policy upon which the federal courts
ought not to enter – had been satisfied, but did not mention the Supreme Court and
the Ninth Circuit cases holding that the first Pullman factor is almost never present
in First Amendment cases. ER 9. As to the second and third factors, the district
court found these were satisfied because a state court might interpret a California
statute providing that court records be made “reasonably accessible” – Government
Code § 68150 – to require “same-day access.” ER 8-9. However, the district court
did not address the California Supreme Court authority holding that state law
provisions governing access to court proceedings and records do not present an

9
#79656 v1 saf

issue of state law separate from the First Amendment question, but rather are coextensive with it. ER 8-9.
As for O’Shea, the district court did not consider that the relief Courthouse
News seeks would not interfere with the merits of any state court adjudicative
proceeding. Instead, it adopted – on a motion to dismiss – the Ventura Clerk’s
factual assertions that the relief sought by Courthouse News would substantially
interfere with the court’s budget and operations. As the district court stated:
Here, the relief [Courthouse News] seeks ... would interfere with the
administration of the Ventura Superior Court’s operations. The
Ventura Clerk’s office would be required to make all new complaints
available on the same day they were filed. Failure to do so would
require judicial proceedings to evaluate the constitutionality of each
delay.
This would be a potentially significant disruption of the court’s
operations, and could possibly lead to a significant reallocation of
court services. This Court hesitates to dictate state and local budget
priorities.
ER 8.
The district court thus abstained and dismissed the Complaint in its entirety.
ER 2. It neither considered the merits of Courthouse News’ preliminary injunction
motion nor the Ventura Clerk’s alternate basis for dismissal, for failure to state a
claim for which relief could be granted. ER 2, 9. This appeal followed.

10
#79656 v1 saf

STATEMENT OF FACTS
Courthouse News is a nationwide legal news service that focuses on
coverage of the civil court record, from newly filed complaints to rulings at the
trial court level and decisions on appeal. ER 62, 65-67. Courthouse News’ web
site, www.courthousenews.com, features news reports and commentary about civil
cases and appeals, and is updated throughout the day. ER 67. For the month of
September 2011, when this case was filed, Courthouse News’s web site had more
than 1.1 million readers, and readership has grown steadily. ER 67.
In addition, Courthouse News publishes new litigation reports, which are emailed to subscribers and contain staff-written summaries of all significant new
civil complaints filed in a particular court. ER 65-66. Although not all complaints
are significant enough to merit coverage, these reports cover many more civil
actions than is typically found in a daily newspaper. For larger courts, reports are
e-mailed to subscribers each evening and cover new civil complaints filed earlier
that same day. ER 65. In addition, Courthouse News offers alerts about new civil
filings, which are delivered by e-mail. ER 66.
For its California subscribers, Courthouse News publishes 16 new litigation
reports, which include daily coverage of all four of California’s federal district
courts together with 19 of the state’s superior courts. ER 65-66. Nationwide,
nearly 3,000 law firms subscribe to Courthouse News’ new litigation reports, with

11
#79656 v1 saf

approximately 740 in California alone, including virtually every major firm in
California. ER 66. In addition to law firms, Courthouse News’ subscribers
include well-known media outlets such as the Los Angeles Times and the San Jose
Mercury News, as well as several universities and law libraries. ER 66.
To produce this level of coverage, Courthouse News employs a nationwide
network of more than 100 reporters, each of whom covers one or more individual
courts. ER 66. At larger courts, reporters visit their assigned court near the end of
each court day. The reporter reviews complaints filed earlier that day and prepares
a summary of each newsworthy complaint for inclusion in the report. ER 66. In
California, Courthouse News only reports on “unlimited jurisdiction” civil
complaints – that is, complaints where the amount in controversy usually exceeds
$25,000. ER 66. Any delay in the reporter’s ability to review a newly filed
complaint necessarily creates a delay in Courthouse News’ ability to inform
interested persons of the allegations in those complaints, and is especially
problematic when there is an intervening weekend and/or holiday, when a delay of
even one court day results in actual delays of three or more calendar days. ER 66.
A.

A Tradition Of Same-Day Access To New Civil Complaints
In recognition of the crucial role the media plays in informing interested

persons about new civil litigation, it has been a longstanding tradition for courts to
provide reporters who visit the court with access to that day’s new civil

12
#79656 v1 saf

complaints at the end of the day on which they are filed. This same-day access
ensures that interested members of the public learn about new cases while they are
still newsworthy. Courts have traditionally and still do provide this same-day
access, in many instances before the complaints have been fully processed. ER 6365, 69, 76-92.
For example, at the Central District of California, the district court in the
proceedings below, a room is set up directly off the docketing department with a
set of pass-through boxes. At the end of each day, a staffer places all of the civil
complaints filed that day in the pass-through boxes so the media can review them.
These complaints are made available for review before they have been processed.
Reporters who cover the courthouse on a daily basis have a key to the room where
they review the complaints and then put them back in the pass-through boxes. ER
63-64. Same-day access to new civil complaints is also provided at all three of
California’s other federal district courts. ER 64, 91.
Similarly, at many California state courts, reporters are provided with sameday access to new civil filings. For example, at the San Francisco, Los Angeles,
and Santa Clara county courts, new filings are available to reporters after initial
intake tasks, but well before full processing. ER 64, 83, 90-91. The Alameda and
Contra Costa county courts also provide same day access to the press, and while

13
#79656 v1 saf

such access is provided after a certain amount of additional processing has been
completed, access is still provided on a same-day basis. ER 64, 85, 87.
B.

The Ventura Clerk’s Policy Of Denying Access Until After “Requisite
Processing” And The Resulting Lengthy Delays In Access
In contrast, Ventura Superior does not provide same-day access to newly

filed civil complaints. ER 68-69. To the contrary, the Ventura Clerk denies access
until his staff has fully “processed” the complaints, the result of which is
deprivations of access that last for days or weeks. ER 16-18, 69-70, 114.
Courthouse News began covering Ventura Superior on a daily basis in
November 2010. ER 68. Shortly after it began daily coverage, Courthouse News
attempted to work cooperatively with the clerk’s office to come up with mutually
workable procedures so that its reporter could have same-day access to the handful
of new unlimited civil complaints filed each day. ER 68-69, 95-97. On June 20,
2011, Courthouse News, through counsel, wrote to the Ventura Clerk to request
same-day access to new civil complaints, and provided examples of the methods
other courts use to provide timely access to the press. ER 69, 94-112.
These efforts were rebuffed. In a July 11, 2011 letter to Courthouse News,
the Ventura Clerk asserted, “While I appreciate the Courthouse News Services’
interest in same-day access, the Court cannot prioritize that access above other
priorities and mandates. Further, the Court must ensure the integrity of all filings,
including new filings, and cannot make any filings available until the requisite
14
#79656 v1 saf

processing is completed. We will continue to make every effort to make new
filings available as early as is practicable given the demands on limited court
resources.” ER 69, 114 (emphasis added).3
Courthouse News’ counsel responded by letter dated August 2, 2011,
disputing the notion that access could not be provided until after “processing.” As
explained in that letter:
[O]ur experience working with other courts shows that providing prompt
media access to new civil complaints – fundamentally, the simple act of
letting reporters see the new complaints that, because they are newly-filed,
are already centrally located in the intake area – need not involve any extra
expense or staff time beyond the de minimis effort of handing a stack of
complaints to a reporter (and even that de minimis effort can be eliminated if
a credentialed reporter is simply allowed to go behind the counter to pick up
the stack, as reporters do at the federal district court in San Francisco, for
example).
Indeed, it has been our experience that providing prompt access is largely a
matter of will on the part of the court and its leaders.
****
At bottom, press access only results in increased costs where the court
imposes the requirement of complete processing before providing
access. But newly filed complaints become public records upon
filing, and this status is not contingent on the court having first
completed processing. We must therefore respectfully but firmly
3

In declarations submitted in opposition to Courthouse News’ motion for a
preliminary injunction, the Ventura Clerk confirmed that his office as a matter of
policy does not allow access to complaints until they have been fully processed by
court processing assistants and then “approved for public viewing.” ER 16-18. In
addition, when processing is performed by “newly appointed” court processing
assistants, the complaints are subject to a further quality control review by a
supervisor before being approved for public viewing, a process that can take
several days. ER 17-18.
15
#79656 v1 saf

disagree with your assertion that providing timely access can only be
accomplished at a monetary cost to the Court.
ER 69, 116-17. Courthouse News received no response to its letter. ER 69.
Courthouse News then filed this action.
The Ventura Clerk’s enforcement of its policy barring access until after
complete “processing” has resulted in substantial access delays. For example,
during the four-week period from August 8-September 2, 2011, Courthouse News
reviewed 152 new unlimited jurisdiction complaints, an average of fewer than
eight per court day. Of the 152 complaints reviewed during that four-week period,
only nine (about 6%) were made available for review on the same court day they
were filed. Twenty-eight complaints (about 18%) were available the court day
after they were filed, and the remaining 115 – more than 75% of those filed – were
not made available for review for two or more court days, with actual delays
stretching up to 34 calendar days. ER 69-70.

16
#79656 v1 saf

SUMMARY OF THE ARGUMENT
The district court erred in its determination, on the basis of two heretofore
narrow abstention doctrines, that the federal courts cannot redress a state court
clerk’s systematic violations of the First Amendment right of access to public court
records – in this case, newly filed civil complaints.
The first of those doctrines, Pullman abstention, cautions restraint by federal
courts in interpreting unsettled state laws in which the federal law claims are
entangled. But it is “almost never ... appropriate in first amendment cases.” Sable
Commc’ns of Cal., Inc. v. Pacific Tel. & Tel. Co., 890 F.2d 184, 191 (9th Cir.
1989) (citation omitted). This is because the first Pullman factor, which requires
that the federal claims pertain to issues over which the states have a peculiar
interest in setting local policy, is almost never present in First Amendment cases
since the constitutional “guarantee of free expression is always an area of
particular federal concern.” Ripplinger v. Collins, 868 F.2d 1043, 1048 (9th Cir.
1989). And the second and third factors – which require that constitutional
adjudication can be avoided or altered by a definitive ruling on the state issue, and
that the proper resolution of the state law issue be uncertain – also are not satisfied.
The California Supreme Court has already ruled that state law provisions relating
to access to court records and proceedings must be construed in a manner that is
co-extensive with the First Amendment right of access. Thus, there is no

17
#79656 v1 saf

“uncertain” question of state law, and abstention under Pullman in this case would
result in a federal court deferring to a state court’s interpretation not of state law
but federal constitutional law, exactly the opposite of what Pullman allows.
The second doctrine, O’Shea, has been almost exclusively confined to cases,
typically class actions, seeking wide-ranging institutional reform of the judiciary
that places the federal court in the position of overseeing and reviewing the state
court’s adjudication of cases on their merits. Prior to the district court’s ruling,
O’Shea had never even been mentioned in, let alone applied to, a federal court
action that challenged a rule or policy relating to the First Amendment right of
access to court records or proceedings. This case does not present any reason to
vary from that precedent. The simple relief Courthouse News seeks –
fundamentally, nothing more than the same timely access to new civil complaints
that reporters commonly have in other courts – would have no effect on how the
state court adjudicates the merits of any of the cases initiated by the complaints,
and would not cause the federal court to monitor and review the decisions of the
state court in individual cases. The federalism and comity concerns upon which
O’Shea abstention is founded are plainly absent.
The federal court is the most appropriate forum for resolution of the First
Amendment issues raised in Courthouse News’ complaint. The district court’s
order refusing to consider those issues should be reversed.

18
#79656 v1 saf

I.
FEDERAL COURTS SHOULD RARELY ABSTAIN, ESPECIALLY IN
SUITS BROUGHT UNDER 42 U.S.C. § 1983; PULLMAN ABSTENTION IS
GENERALLY INAPPROPRIATE IN FIRST AMENDMENT CASES, AND
THE DISTRICT COURT’S DECISION CANNOT SURVIVE UNDER ANY
STANDARD OF REVIEW, LET ALONE THE TYPE OF EXACTING
REVIEW ACCORDED ABSTENTIONS UNDER PULLMAN OR O’SHEA
“[A]bstention remains an extraordinary and narrow exception to the general
rule that federal courts ‘have no more right to decline the exercise of jurisdiction
which is given, than to usurp that which is not given.’” Potrero Hills Landfill, Inc.
v. Cnty. of Solano, 657 F.3d 876, 882 (9th Cir. 2011) (quoting New Orleans Pub.
Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 358 (1989) (“NOPSI”)).
Because federal courts remain the primary and preferred forum for deciding
questions of federal law, the right of a plaintiff to litigate federal law claims in a
federal court should not generally be denied. Steffel v. Thompson, 415 U.S. 452,
472 (1974) (Younger abstention); England v. La. State Bd. of Med. Exam’rs, 375
U.S. 411, 415-16 (1964) (Pullman abstention).
The federal courts’ “unflagging obligation” to exercise their jurisdiction “is
particularly weighty when those seeking a hearing in federal court are asserting …
their right to relief under 42 U.S.C. § 1983.” Miofsky v. Superior Court, 703 F.2d
332, 338 (9th Cir. 1983) (rejecting Younger abstention in case against a superior
court) (quotation omitted). Moreover, in the context of Pullman abstention, this
Court has recognized that “‘constitutional challenges based on the first amendment

19
#79656 v1 saf

right of free expression are the kind of cases that the federal courts are particularly
well-suited to hear. That is why abstention is generally inappropriate when first
amendment rights are at stake.’” Porter, 319 F.3d at 492 (quoting J-R Distribs. v.
Eikenberry, 725 F.2d 482, 487 (9th Cir. 1984), overruled on other grounds by
Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985)).
Courts must thus apply abstention doctrines narrowly to avoid “mak[ing] a
mockery of the rule that only exceptional circumstances justify a federal court’s
refusal to decide a case in deference to the States.” NOPSI, 491 U.S. at 368.
When a defendant urges abstention, the court’s task is “not to find some substantial
reason for the exercise of federal jurisdiction by the district court; rather, the task is
to ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest of
justifications’ that can suffice ... to justify the surrender of that jurisdiction.”
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25-26 (1983).
To ensure that abstention remains limited to its “carefully defined” boundaries,
NOPSI, 491 U.S. at 359, an abstention doctrine should not be applied unless each
of its requirements are strictly met; balancing the elements is not permitted.
AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1148 (9th Cir. 2007).
It follows that “unless certain exceptional circumstances are present, a
district court has little or no discretion to abstain.” Almodovar v. Reiner, 832 F.2d
1138, 1140 (9th Cir. 1987). For Pullman abstention, “[w]hether these

20
#79656 v1 saf

requirements [are] met is a mixed question of fact and law, that is more law than
fact, and is therefore reviewed de novo.” Id.; Fireman’s Fund Ins. Co. v. City of
Lodi, 302 F.3d 928, 939 (9th Cir. 2002) (“[W]e review de novo whether this case
meets the requirements of the Pullman abstention doctrine. ... The district court has
no discretion to abstain in cases that do not meet the requirements of the abstention
doctrine being invoked.”). Only then does the appellate court “review[] the district
court’s ultimate decision to abstain under Pullman for abuse of discretion.” Smelt
v. Cnty of Orange, 447 F.3d 673, 678 (9th Cir. 2006).4
The district court’s abstention under O’Shea should also be reviewed de
novo. It is settled that this Court “review[s] de novo the district court’s decision to
abstain under the Younger doctrine.” Potrero Hills, 657 F.3d at 881 (citing Green
v. City of Tucson, 255 F.3d 1086, 1093 (9th Cir. 2001) (en banc), overruled in part
on other grounds by Gilbertson v. Albright, 381 F.3d 965, 968 (9th Cir. 2004) (en
banc)), and it is equally clear that abstention under O’Shea is a decision to abstain
under a branch of the Younger doctrine. See Pulliam v. Allen, 466 U.S. 522, 539
n.20 (1984) (describing O’Shea as being decided on “Younger v. Harris grounds”);
Parker v. Turner, 626 F.2d 1, 6-7 (6th Cir. 1980) (describing O’Shea as “an
extension of Younger” and “clearly based on Younger principles”). Indeed, most
courts analyze O’Shea and Younger as two facets of a single doctrine. See, e.g.,
4

This has been characterized as a “modified abuse of discretion standard.”
Almodovar, 832 F.2d at 1140.
21
#79656 v1 saf

Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695, 701 (D.C. Cir. 1984). Thus,
O’Shea abstention should be reviewed under the same standard as Younger
abstention, particularly here, where the district court’s order granting dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(6) must be reviewed de novo.
See, e.g., TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).5
In this case, however, the Court “need not resolve” this issue because
“whether [the Court] review[s] the district court’s ruling de novo or for an abuse of
discretion, [the Court’s] conclusion remains the same.” E.T. v. Cantil-Sakauye,
2012 U.S. App. LEXIS 5147, *5-6 n.3 (9th Cir. March 12, 2012) (per curiam).
Under either standard of review, the district court should not have abstained, and
its judgment of dismissal should be reversed.

5

Although the Ventura Clerk did not specify the rule or statutory authority under
which his motion was brought, because his motion asserted it was for “failure to
state a claim,” ER 26-29, it was apparently brought under FRCP 12(b)(6). On a
Rule 12(b)(6) motion, all allegations of material fact in the plaintiff’s complaint are
taken as true and construed in the light most favorable to the non-moving party.
Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). This includes materials
attached to the complaint. Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583
F.2d 426, 429-30 (9th Cir. 1978). “[A]ll reasonable inferences” must be drawn in
favor of the non-moving party. Newcal Indus., Inc. v. Ikon Office Solution, 513
F.3d 1038, 1043 n.2 (9th Cir. 2008); see also Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 595 (8th Cir. 2009) (district court erred by “ignor[ing] reasonable
inferences supported by the facts alleged” by plaintiff and by “[drawing] inferences
in appellees’ favor ... Each of these errors violates the familiar axiom that on a
motion to dismiss, inferences are to be drawn in favor of the non-moving party.”).
22
#79656 v1 saf

II.
THE DISTRICT COURT ERRED IN ABSTAINING UNDER PULLMAN IN
THIS FIRST AMENDMENT CASE THAT INVOLVED NO UNCERTAIN
STATE LAW QUESTION INDEPENDENT OF THE FIRST AMENDMENT
This Court’s analysis of whether the district court erred in abstaining under
Pullman “begin[s] with the settled proposition that ‘a federal court must decide the
cases properly before it; abstention from the exercise of jurisdiction is the
exception to the rule.’” J-R Distribs., 725 F.2d at 487 (citation omitted). As the
Supreme Court has shown by repeatedly reversing over-reaching applications of
Pullman, “[t]he abstention doctrine is not an automatic rule applied whenever a
federal court is faced with a doubtful issue of state law.” Baggett v. Bullitt, 377
U.S. 360, 375 (1964). While a decision to abstain may ultimately “involve[] a
discretionary exercise of a court’s equity powers,” id., that is only true in cases
where, unlike here, “there exist[s] the ‘special circumstances’” that the Supreme
Court has held are “prerequisite to [Pullman’s] application.” Id. (citation omitted).
Moreover, a federal court has no discretion, and “abstention cannot be ordered[,]
simply to give the state courts the first opportunity to vindicate a federal claim.”
Zwickler v. Koota, 389 U.S. 241, 251 (1967) (emphasis added). 6
These two limitations on a district court’s discretion – each of which are
6

This is consistent with the dual purposes of Pullman abstention, which are to
determine whether resolution of the federal question can be avoided altogether and
to eliminate the risk of a federal court’s erroneous construction of state law. Allen
v. McCurry, 449 U.S. 90, 101 n.17 (1980); Porter, 319 F.3d at 492.
23

#79656 v1 saf

sufficient alone to preclude a court abstaining – both exist in First Amendment
challenges to state statutes, policies or regulations. “‘In a facial attack [on first
amendment grounds] the special circumstances which have been held to justify
abstention … are usually absent.’” J-R Distribs., 725 F.2d at 488 (quoting Hobbs
v. Thompson, 448 F.2d 456, 463 (5th Cir. 1971)) (brackets added by J-R Distribs.);
Porter, 319 F.3d at 493 (abstention “‘is inappropriate for cases … where …
statutes are justifiably attacked on their face as abridging free expression, or as
applied for the purpose of discouraging protected activities.’”) (quoting
Dombrowski v. Pfister, 380 U.S. 479, 489-90 (1965)).
The district court therefore had no discretion to abstain under Pullman in
this case. The complaint alleges that the Ventura Clerk’s policy of delaying access
to civil complaints violates the First Amendment right of “‘immediate and
contemporaneous’” access to civil court records. Jackson, 2009 U.S. Dist. LEXIS
62300, at *11 (quoting Grove Fresh, 24 F.3d at 897). In granting Courthouse
News the very relief against a Texas state court clerk that Courthouse News seeks
here, Jackson demonstrates that federal courts should decide this issue of federal
constitutional law. That is because “‘Pullman abstention would almost never be
appropriate in first amendment cases because such cases involve strong federal
interests and because abstention could result in the suppression of free speech.’”
Sable Commc’ns, 890 F.2d at 191 (quoting Playtime Theaters, Inc. v. City of

24
#79656 v1 saf

Renton, 748 F.2d 527, 532 (9th Cir. 1984), rev’d on other grounds, 475 U.S. 41
(1986)).7
But even if Pullman abstention might otherwise be appropriate in First
Amendment cases, the special circumstances required for application of that
doctrine are not satisfied here. “In order to ‘give due respect to a suitor’s choice of
a federal forum for the hearing and decision of [its] federal constitutional claims,’”
Pullman abstention “should rarely be applied.” Porter, 319 F.3d at 492 (quoting
Zwickler, 389 U.S. at 248). Where it is permissible at all, it is only allowed if all
of the following three circumstances are present: (1) The case touches on a
sensitive area of social policy upon which the federal courts ought not to enter
unless no alternative to its adjudication is open; (2) Constitutional adjudication
plainly can be avoided if a definite ruling on the state issue would terminate the
controversy; and (3) The proper resolution of the possible determinative issue of

7

“As the Supreme Court has emphasized, to abstain and thus ‘force the plaintiff
who has commenced a federal action to suffer the delay of state court proceedings
might itself effect the impermissible chilling of the very constitutional right he
seeks to protect.’” J-R Distribs., 725 F.2d at 488 (quoting Zwickler, 389 U.S. at
252). This is particularly true in cases involving the First Amendment right of
access to court proceedings and/or records because the “delay” that results from
abstention is “effectively a denial of any right to contemporaneous access.”
Lugosch v. Pyramid Co., 435 F.3d 110, 1267 (2d Cir. 2006) (district court violated
First Amendment by holding in abeyance motion of news media to intervene and
unseal civil court records). By refusing to rule on the merits of Courthouse News’
motion for preliminary injunction, the district court’s “abstention … result[ed] in
the suppression of free speech that is meant to be protected by the Constitution.”
J-R Distribs., 725 F.2d at 488.
25
#79656 v1 saf

state law is uncertain. Porter, 319 F.3d at 492. “The absence of any one of these
three factors is sufficient to prevent the application of Pullman abstention.” Id.
None were met here.
A.

The First Pullman Factor Is Not Satisfied Because Federal Courts Are
The Appropriate Forum To Hear First Amendment Cases
The first Pullman factor requires that the federal claims pertain to issues

over which the states have a peculiar interest in setting local policy. The purpose
of the first factor is to avoid “unnecessary interference with an important state
program.” Pearl Inv. Co. v. City & Cnty. of San Francisco, 774 F.2d 1460, 1463
(9th Cir. 1985) (land use planning generally touches upon sensitive areas of social
policy). This factor reflects the concern that federal courts not “stifle innovative
state efforts to find solutions to complex social problems.” Rancho Palos Verdes
Corp. v. City of Laguna Beach, 547 F.2d 1092, 1095 (9th Cir. 1976); see
Almodovar, 832 F.2d at 1140 (first Pullman factor protects “state sovereignty over
matters of local concern”). Pullman abstention is thus permitted where the case
involves local issues that have been addressed by a recent “array of state
constitutional provisions and statutes” that show the state is “grappling” with
difficult problems “through new policies and new mechanisms of regulation.”
Rancho Palos Verdes, 547 F.2d at 1094-95; see, e.g., Smelt, 447 F.3d at 680-81 &
nn.18-21 (noting extensive treatment of marriage under state law).
“In First Amendment cases,” however, “the first Pullman element ‘will
26
#79656 v1 saf

almost never be present because the constitutional guarantee of free expression is
always an area of particular federal concern.’” Wolfson v. Brammer, 616 F.3d
1045, 1066 (9th Cir. 2010) (quoting Ripplinger, 868 F.2d at 1048). The First
Amendment right of access to court records and proceedings at issue in this case is
part and parcel of the right of free expression. See, e.g., Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 580 (1980); Rivera-Puig, 983 F.2d at 322-23.
Consequently, “[a]bstention was inappropriate because the first Pullman factor was
not present here.” Porter, 319 F.3d at 492. 8
B.

Even If This Were Not A First Amendment Case, The Second And
Third Factors Are Not Satisfied Because There Is No Uncertain Issue
Of State Law That Could Avoid Or Alter The Federal Question
“The paradigm of the ‘special circumstances’ that make abstention

appropriate is a case where the challenged state statute is susceptible of a
construction by the state judiciary that would avoid or modify the necessity of
reaching a federal constitutional question.” Kusper v. Pontikes, 414 U.S. 51, 54
(1973). In its seminal decision discussing the three Pullman factors, this Circuit
8

Even to the extent access to court records presents an issue of local concern for
Pullman purposes, the state of California has opted not to grapple with it. As part
of its efforts to ensure that California courts comply with the right of access to civil
court records, last year, Courthouse News co-sponsored Senate Bill 326, which
would have required the California Judicial Council to adopt a rule of court
requiring courts to provide access to complaints by the end of the day they are
filed, subject to certain exceptions. ER 35-38. The bill was opposed by the
Judicial Council, a body chaired by the Chief Justice of the California Supreme
Court. ER 46-48, 55-57. The bill was re-referred to committee on September 1,
2011, and no further action has been taken on it since. ER 53.
27
#79656 v1 saf

recognized that this circumstance merges the second and third factors: “With
regard to elements (2) and (3), it is crucial that the uncertainty in the state law be
such that construction of it by the state courts might obviate, or at least delimit,
decision of the federal (constitutional) question.” Canton v. Spokane Sch. Dist. No.
81, 498 F.2d 840, 845 (9th Cir. 1974), overruled on other grounds, Heath v.
Cleary, 708 F.2d 1376, 1378-79 n.2 (9th Cir. 1985).
As this observation indicates, the second Pullman factor turns on whether
the case may be determined on an issue of state law, separate and apart from the
federal constitutional issue presented, and the third factor turns on whether that
state law is uncertain to the extent that its resolution “would … eliminate []or
materially change the constitutional issues presented.” J-R Distribs., 725 F.2d at
488 (“The second and third Pullman factors suggest that abstention is only proper
when a federal constitutional issue may be avoided or presented differently once a
state law issue is resolved or a state statute is construed.”).
Neither factor is present here. The state law provisions relied upon by the
district court and the Ventura Clerk are not separate from the First Amendment
question, but rather are co-extensive with it. And their interpretation by a state
court would hardly avoid or alter the First Amendment question because the state’s
highest court has held that state courts must apply the “relevant federal
constitutional precedents in considering the proper interpretation” of state law

28
#79656 v1 saf

provisions governing access to court proceedings and records. NBC Subsidiary
(KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1197 (1999).
1.

State Law Provisions That Mirror Federal Constitutional
Standards Do Not Meet The Second Pullman Factor

Because the critical issue is whether the resolution of the federal question
“depends on state law and the extent to which [the federal question] can be
eliminated or simplified by state court proceedings,” Bank of America Nat’l Trust
& Sav. Ass’n v. Summerland Cnty. Water Dist., 767 F.2d 544, 547 (9th Cir. 1985),
the second Pullman factor is not satisfied if the state law is co-extensive with
federal law and thus only provides an alternate, but functionally equivalent, basis
for relief. Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 237 n.4 (1984);
Examining Bd. v. Flores de Otero, 426 U.S. 572, 598 (1976); Pue v. Sillas, 632
F.2d 74, 79-81 (9th Cir. 1980) (rejecting previous authority indicating otherwise).
This Court has reversed Pullman abstention based on “mirror-image” provisions
because “abstention [is] inappropriate where state and federal provisions simply
‘mirror[]’ one another.” Id. at 79-81 (citing, e.g., Examining Bd., 426 U.S. at 59798, and Stephens v. Tielsch, 502 F.2d 1360 (9th Cir. 1974)) (quotation omitted).
Indeed, requiring a plaintiff to seek relief by way of a state law remedy that
is functionally equivalent to the stated federal bases for relief would defeat the very
purpose of 42 U.S.C. § 1983 to provide a federal court remedy for a violation of
federal law. McNeese v. Bd. of Educ., 373 U.S. 668, 672 (1963) (holding that a
29
#79656 v1 saf

federal court should not abstain simply to give a state court the first opportunity to
vindicate federal rights); id. at 674 (holding that “such claims are entitled to be
adjudicated in the federal courts”). “The [Supreme] Court has expressly held that
state remedies supplement, but do not supplant, federal remedies under section
1983.” Pue, 632 F.2d at 81 (citing McNeese, 373 U.S. at 674).
That is the situation here. In the proceedings below, the Ventura Clerk
identified two provisions he claimed might render adjudication of the First
Amendment claims unnecessary: Government Code § 68150, on which the district
court relied, and Rule of Court 2.550, on which it did not. ER 9, 24-25. Both
provide “mirror-image” relief to the First Amendment right of access – the latter
expressly and the former under state case law mandating that such laws “must …
be interpreted in a manner compatible with” the “constitutional standards”
mandated by “the First Amendment … right of access.” NBC Subsidiary, 20 Cal.
4th at 1212, 1208 n.25.
Government Code § 68150 provides that “Unless access is otherwise
restricted by law, court records ... shall be made reasonably accessible to all
members of the public for viewing and duplication as the paper records would have
been accessible.” It is to court records what the statute at issue in NBC Subsidiary
– which provides that “[e]xcept as provided in ... any other provision of the law,
the sittings of every court shall be open,” Cal. Code Civ. Proc. § 124 – is to court

30
#79656 v1 saf

proceedings. In NBC Subsidiary, the California Supreme Court recognized that its
interpretation of § 124 “must be guided ... by the relevant constitutional
principles,” and therefore held that § 124 was to be construed in a manner coextensive with the First Amendment right of access. 20 Cal. 4th at 1191-92, 1216
(“The First Amendment cases discussed above inform our interpretation of Code of
Civil Procedure section 124, which, of course, we must construe in a fashion that
avoids rendering its application unconstitutional.”) (citing, e.g., Press-Enterprise
Co. v. Superior Court, 478 U.S. 1, 13-14 (1986) (“Press-Enterprise II”)); see also
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-11 (1982). It follows
that § 68150 “must” be interpreted the same way – in a manner co-extensive with
the First Amendment right of access.
Rule 2.550 is even more explicitly co-extensive with federal law. It merely
restates the First Amendment test for access incorporated into California law in
NBC Subsidiary. See Advisory Comm. Comment, Cal. Rule of Court 2.550 (“This
rule ... provide[s] a standard and procedures for courts to use when a request is
made to seal a record. The standard is based on NBC Subsidiary ... [This rule
applies] to civil and criminal cases. [It] recognize[s] the First Amendment right of
access to documents used at trial or as a basis of adjudication.”). In applying this
rule, California courts therefore look to the First Amendment in deciding whether
access to court records has been properly denied.

31
#79656 v1 saf

Although Pue, Stephens and the Supreme Court decisions on which they
were based rejected Pullman abstention premised on state constitutional provisions
that were mirror images of the federal constitutional provisions at issue, the
reasoning underlying the result in those cases applies equally to other provisions of
state law that expressly or by interpretation are co-extensive with federal law:
By abstention, federal courts seek to avoid erroneous determinations of
state law, which may cause unnecessary constitutional adjudication.
When a state constitutional provision is inextricably related to the
interpretation of state law, logic requires that the state constitutional
provision be analyzed prior to reaching or framing any federal
constitutional issues that depend upon the state law’s meaning. A
determination of state law is thus requisite, and abstention avoids the risk
of error. In contrast, when the state constitutional provision merely
mirrors the federal constitution, its interpretation neither logically
precedes nor governs the federal question.
Pue, 632 F.3d at 81. Since “essentially the same constitutional claim” would be
presented in state court, it would therefore “entail wasteful duplication of effort to
send cases back for state adjudication in the circumstances present here.”
Stephens, 502 F.2d at 1362.
2.

State Laws That Are Not Uncertain Because State Courts Have
Held They Must Be Construed Pursuant To Federal Standards
Do Not Satisfy The Third Pullman Factor

For Pullman abstention to be upheld, “[i]t is especially crucial that the third
criterion [–] an uncertain issue of state law [–] be satisfied.” Pue, 632 F.2d at 78.
The district court apparently thought the third factor was satisfied because “the
term ‘reasonable access’ [in Government Code § 68150] has not yet been defined
32
#79656 v1 saf

by either the state courts or the California legislature.” ER 9. But “[t]hat is not a
sufficient reason for abstaining.” Hillery v. Rushen, 720 F.2d 1132, 1137 (9th Cir.
1983). “Federal courts need not abstain from deciding every issue of state law that
the state’s courts have not had occasion to decide. Because arguments can be
presented in an infinite number of ways, a contrary holding would render
abstention the rule rather than the ‘extraordinary and narrow’ exception that it is.”
Id. at 1137; accord, e.g., Pue, 632 F.2d at 79-80 (abstention improper although no
California court had considered the California law).
The third Pullman factor does not turn, then, on whether an issue of state
law is undecided, but rather “‘contemplates that deference to state court
adjudication only be made where the issue of state law is uncertain.’” Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 306 (1979) (quoting Harman v.
Forssenius, 380 U.S. 528, 534 (1965)).
In the very next sentence, the Court in Babbitt explained what it meant by
“uncertain”; it is only when “the state statute at issue is ‘fairly subject to an
interpretation which will render unnecessary or substantially modify the federal
constitutional question.’” Id. (quoting same); accord Badham v. U.S. Dist. Court,
721 F.2d 1170, 1177 (9th Cir. 1983); see Ellis v. City of La Mesa, 990 F.2d 1518,
1522 (9th Cir. 1993) (“Uncertainty for purposes of Pullman abstention means that
a federal court cannot predict with any confidence how the state’s highest court

33
#79656 v1 saf

would decide an issue of state law.”) (quotation omitted).9
In this case, the California Supreme Court has directed that interpretation of
state law provisions governing access to civil court proceedings and records must
“comply with the requirements of the First Amendment right of access.” NBC
Subsidiary, 20 Cal. 4th at 1226. The third Pullman factor therefore is not satisfied
not only because there is recent interpretive case law by the state’s highest court on
the general contours of the issue, Ellis, 990 F.2d at 1522 (holding Pullman
abstention not appropriate because the California Supreme Court had interpreted
the state constitution’s religion clauses on a similar, but not identical, point), but
also because “state-court construction of the provisions governing [access to court
records] would not obviate the need for decision of the constitutional issue or
materially alter the question.” Babbitt, 442 U.S. at 306. “[T]here is no fair
construction of th[ese] provision[s] that would moot the federal issue of whether”
the substantial delays in access at the hands of the Ventura Clerk violates the First
Amendment. Midkiff v. Tom, 702 F.2d 788, 789 (9th Cir. 1983), aff’d in rejecting
abstention, rev’d on other grounds, Hawaii Housing Auth., 467 U.S. 229 (1984).

9

In such a case, “abstention may be required ‘in order to avoid unnecessary friction
in federal-state relations, interference with important state functions, tentative
decisions on questions of state law, and premature constitutional adjudication.’”
Babbitt, 442 U.S. at 306 (quoting Harman, 380 U.S. at 534).
34

#79656 v1 saf

III.
O’SHEA DOES NOT APPLY BECAUSE THE TIMELY ACCESS TO
COMPLAINTS THAT COURTHOUSE NEWS SEEKS IS NO MORE THAN
WHAT OTHER COURTS ALREADY PROVIDE AND WHAT ANOTHER
FEDERAL DISTRICT COURT HAS PREVIOUSLY ORDERED, AND
WOULD NOT INTERFERE WITH THE STATE COURT’S
ADJUDICATION OF FUTURE CASES ON THE MERITS
In abstaining under O’Shea, the district court expressed the concern that if it
required the Ventura Clerk to make new complaints available on the same day they
were filed, the failure of the clerk to do so would “require judicial proceedings to
evaluate the constitutionality of each delay,” and that this, in turn, would have the
potential to disrupt the Ventura County Superior Court’s operations and could lead
to a reallocation of that court’s resources. ER 8.
The district court’s concern was misplaced. As noted above, see supra at 78, Courthouse News is not seeking to require the Ventura court to subject each
individual complaint filed with it to a case-by-case adjudication of when it should
be made public. To the contrary, Courthouse News’ complaint sought to require
the Ventura Clerk to cease his policy of prohibiting access to all newly filed
complaints until after they have been processed, and thereby to stop denying
Courthouse News access to new complaints on the day they are filed.
But even if the district court’s concerns were consistent with Courthouse
News’ complaint, they would not be sufficient to justify O’Shea abstention. As the
Supreme Court noted in O’Shea itself, that doctrine is designed to prevent the
35
#79656 v1 saf

“kind of interference that Younger v. Harris ... sought to prevent,” 414 U.S. at 500,
that is, interference with the adjudication of the merits of state court cases. Unlike
the declaratory relief sought in E.T., the only case in which this Court has ever
upheld O’Shea abstention, the relief sought by Courthouse News will not require
“the examination of the administration” on the merits “of a substantial number of
individual cases” of the judges of the state court by the federal court. E.T., 2012
U.S. App. LEXIS 5147 at *9. Rather, as Jackson demonstrates, it only requires the
district court to enter a one-time injunction directing the Ventura Clerk to cease his
policies of denying access to complaints on the day they are filed. Thus, the
district court plainly erred in abstaining.
A.

The O’Shea Doctrine Is Reserved For Cases Where The Relief Sought
Would Involve A Major And Ongoing Intrusion By The Federal Courts
Into Future State Court Adjudicative Proceedings
The error in the district court’s unprecedented extension of O’Shea

abstention to cases alleging a violation of the First Amendment right of access –
which involves no consideration of the merits of any decision of any state court
judge – is illustrated by the contrast to the facts of O’Shea itself.
In O’Shea, a class of African-American plaintiffs claimed a group of public
officials, including a county magistrate and judge, denied them their civil rights by
setting higher bonds, imposing harsher confinement conditions and bringing mere
ordinance violations to trial in a racially discriminatory and retaliatory manner, and

36
#79656 v1 saf

sought to enjoin the magistrate and judge from engaging in such practices.
O’Shea, 414 U.S. at 491-92. The Supreme Court reversed a Seventh Circuit ruling
holding that, if plaintiffs’ allegations were proven, the district court should enjoin
the court officials from carrying out their judicial duties in a way that violated their
constitutional rights and could require “periodic reports of various types of
aggregate data on actions on bail and sentencing.” Id. at 492-93 & n.1.
As one of its bases for reversal, the O’Shea court found the relief sought by
the plaintiffs was “aimed at controlling or preventing the occurrence of specific
events that might take place in the course of future state criminal trials,” and
“would contemplate interruption of state proceedings to adjudicate assertions of
noncompliance” by the class members, resulting in “nothing less than an ongoing
federal audit of state criminal proceedings which would indirectly accomplish the
kind of interference that Younger v. Harris ... and related cases sought to prevent.”
Id. at 500.10 The “kind of interference that Younger ... sought to prevent,” of

10

In Younger, the plaintiff, a defendant in a state criminal prosecution, filed a
federal court action to enjoin the district attorney from prosecuting him. 401 U.S.
at 38-39. Several other parties then intervened in the action claiming that the
prosecution would inhibit them from exercising their constitutional rights. The
Court, relying on established principles of comity and federalism, found that it
could not grant the injunction. Id. at 53. In this Court, Younger abstention is
required in civil proceedings when: (1) there is an ongoing state court proceeding;
(2) the state proceeding implicates important state interests; (3) the state
proceeding provides an adequate opportunity to raise the federal questions; and (4)
the federal court’s action would enjoin or have the practical affect of enjoining the
state court proceeding. Potrero Hills, 657 F.3d at 882.
37
#79656 v1 saf

course, was the interruption of the adjudication on the merits of state court cases.
Middlesex Cnty. Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 432
(1982); AmerisourceBergen, 495 F.3d at 1149 (defining the “Younger-based reason
to abstain” as a situation where “the court’s action would enjoin, or have the
practical effect of enjoining, ongoing state court proceedings”); Gilbertson, 381
F.3d at 976 (“There is no doubt that interference with state proceedings is at the
core of the comity concern that animates Younger.”).
Thus, while Younger counsels against interfering with the adjudication of
pending state court proceedings, O’Shea’s focus was a concern about interference
with the adjudication of future proceedings. As the high court explained, “An
injunction of the type contemplated by respondents and the Court of Appeals
would disrupt the normal course of proceedings in the state courts via resort to
federal suit for determination of the claim ab initio, just as would the request for
injunctive relief from an ongoing state prosecution against the federal plaintiff
which was found to be unwarranted in Younger.” O’Shea, 414 U.S. at 501.
The O’Shea court went on to explain what quantum of interference with
future state court proceedings would be unacceptable: the injunction contemplated
in that case, the court said, would be “a major continuing intrusion” because it
would lead to “continuous or piecemeal interruptions” of future state court
proceedings by “any of the members of the broadly defined class.” Id. at 500.

38
#79656 v1 saf

Furthermore, it “would require for its enforcement the continuous supervision by
the federal court over the conduct of the petitioners [a magistrate and a judge] in
the course of future criminal trial proceedings involving any members of the
respondents’ broadly defined class,” by way of the contemplated “periodic
reporting system.” Id. at 501. The Court found the contemplated injunction
“unworkable” because of “inherent difficulties in defining the proper standards
against which such claims might be measured, and the significant problems of
proving noncompliance in individual cases.” Id. at 501-02. And because the class
of plaintiffs was so broad and the potential violations of law so varied and
numerous, the federal court would need to continuously monitor and supervise the
operation of the state court. Id. at 500.
Consistent with this guidance, the few instances in which courts have
abstained under O’Shea have been confined to cases, typically class actions, that
call for a major and ongoing intrusion by the federal courts into future state court
adjudicative proceedings. See E.T., 2012 U.S. App. LEXIS 5147, at *7-10; Luckey
v. Miller, 976 F.2d 673, 676-79 (11th Cir. 1992). Conversely, where the potential
interference does not seek to substantially interfere with the state court’s
adjudication of future state court cases on the merits, O’Shea abstention has been
found to be improper. See, e.g., Los Angeles Cnty. Bar Ass’n, 979 F.2d at 703;
Tarter v. Hury, 646 F.2d 1010, 1013-14 (5th Cir. 1981).

39
#79656 v1 saf

For example, E.T. was a proposed class action involving 5,100 foster
children who claimed that “crushing and unlawful caseloads” of the Sacramento
County juvenile dependency court frustrated the court’s ability to fairly hear cases
and court-appointed attorneys’ ability to provide effective assistance of counsel.
Their complaint – brought against, inter alia, California’s Chief Justice and the
Presiding Judge of the Sacramento Superior Court – sought an order “‘mandating
that Defendants provide the additional resources required to comply with the
Judicial Council of California and the National Association of Counsel for
Children’s recommended caseloads for each court-appointed attorney.’” E.T.,
2012 U.S. App. LEXIS 5147 at *2-3. In affirming abstention under O’Shea, this
Court held that the requested equitable relief would inevitably lay the groundwork
for the future “examination of the administration of a substantial number of
individual cases” by a federal judge, amounting to “an ongoing federal audit of
Sacramento County Dependency Court proceedings.” Id. at *9.
Similarly, the cases on which E.T. relied would have required federal courts
to inject themselves into and/or monitor ongoing state court proceedings. One was
a lawsuit against the Chief Justice of New York’s Court of Appeals and the
Presiding Justice of the Appellate Division of that state’s Supreme Court, in which
the plaintiff alleged his due process rights were violated by the New York court
system’s procedures for assigning appellate judges. Kaufman v. Kaye, 466 F.3d

40
#79656 v1 saf

83, 86 (2d Cir. 2006). The Second Circuit abstained because declaring the
assignment system unconstitutional would open the door to any appellant who did
not like his or her assigned panel to delay the case by way of a federal enforcement
action. “Such challenges would inevitably lead to precisely the kind of ‘piecemeal
interruptions of ... state proceedings’ condemned in O’Shea.” Id. at 87.
Another was a class action on behalf of “‘all individuals who are or will in
the future be adversely affected by the unconstitutional practices of the indigent
defense system within Georgia.’” Luckey, 976 F.2d at 676. The case, brought
against the governor of Georgia and the chief judges of two circuit courts, sought
an order requiring the state court system to furnish indigent defendants with
counsel at probable cause hearings and the speedy appointment of counsel at all
critical stages, furnish adequate services and experts, and adequately compensate
counsel. The class also asked the federal court to order the state court system to
adopt uniform standards governing the representation of indigent defendants and
asked the federal court to monitor the implementation of those standards. Id. The
Eleventh Circuit abstained under O’Shea because the relief sought would
inevitably involve the federal court in future enforcement actions that were more
detailed and intrusive than the presently requested injunction. Id. at 679.
But O’Shea does not allow abstention where, as here, the required relief
would not require continuous monitoring of the adjudication on the merits of future

41
#79656 v1 saf

state court proceedings, let alone seriously disrupt those proceedings. “[L]ocal
judicial administration is not immune from attacks in federal court on the ground
that some of its practices violate federal constitutional rights.” Family Div. Trial
Lawyers, 725 F.2d at 701.
The dividing line is between cases that would “require ... case-by-case
evaluations of discretionary decisions,” in which case O’Shea abstention is
appropriate, and cases like this one that instead would simply involve
“nondiscretionary procedural” safeguards against the violation of constitutional
rights, in which case O’Shea abstention is not proper. Tarter, 646 F.2d at 1013.
The line is perhaps best illustrated by Tarter because the Fifth Circuit abstained
from considering a request to enjoin the judges from setting excessive bail – noting
that such an injunction was identical to that rejected in O’Shea itself, id. at 1013 –
but declined to abstain with respect to the propriety of the state court clerk’s
refusal to docket and the judges’ refusal to consider pro se motions. Id. at 101314. As that court explained:
The enforcement of an injunction requiring clerks to file all pro se
motions would not require the same sort of interruption of state
criminal processes that an injunction against excessive bail would
entail. Because the amount of bail prescribed for each criminal
defendant depends on the peculiar facts and circumstances of his case,
the setting of bail requires ad hoc decisions committed to the
discretion of judges. An injunction against excessive bail, no matter
how carefully limited, would require a federal court to reevaluate de
novo each challenged bail decision. By contrast, an injunction
requiring that all pro se motions be docketed and considered by the
42
#79656 v1 saf

court ... would not require such case-by-case evaluations of
discretionary decisions. It would add a simple, nondiscretionary
procedural safeguard to the criminal justice system.
Id. at 1013-14.
This Circuit has abided by that same dividing line in two cases. In the first,
it declined to abstain under O’Shea even though the relief sought, a declaration that
the Los Angeles court was constitutionally required to have more judges, would
entail “heavy federal interference” in the administration of the state court by
requiring “restructuring” of the court and would inevitably lead to subsequent
federal actions “exploring the contours” of the constitutional right the court would
announce. Los Angeles Cnty. Bar, 979 F.2d at 699, 703. In the second, this Court
held that while Los Angeles County Bar involved only an increase in judges to
alleviate delay, which did not require the court to monitor any adjudications on the
merits and thus did not warrant abstention, the complaint before it also addressed
the adequacy of representation, and would necessarily involve consideration of the
conduct of numerous individual cases and decisions by the presiding judges, which
supported abstention. E.T., 2012 U.S. App. LEXIS 5147 at *6-10.
B.

A Complaint Against A State Court Clerk Seeking To Prevent Him
From Enforcing His Administrative Policies Resulting In Denials Of
Access To Newly Filed Civil Complaints Is Not the Type Of Action To
Which O’Shea Abstention May Be Properly Applied
Unlike every case in which O’Shea has been applied, the relief sought by

Courthouse News will not interfere with, interrupt, delay, disrupt, or affect the
43
#79656 v1 saf

adjudication of the merits of any pending or future matter in Ventura Superior, or
in any California state court, for that matter. To the contrary, the relief Courthouse
News seeks is directed solely at the administrative policies of the Ventura Clerk’s
office – namely, his policy of prohibiting access to new civil complaints until after
they have been fully processed, and the resulting denial of access on the day
complaints are filed, and continuing for days or weeks after.
As the prior Texas litigation shows, it is a simple matter for a federal court,
in the first instance, to craft an injunction requiring a state court clerk to cease his
policies resulting in delayed access and to provide the same timely same-day
access already being provided by other courts. See Jackson, 2009 U.S. Dist.
LEXIS 62300 at *14-15, 2010 U.S. Dist. LEXIS 74571 at *3-6. No ongoing
federal oversight is necessary, nor does Courthouse News seek it in its complaint.
And in any event, the adjudication of delays in access is ancillary and
peripheral to the adjudication of the court proceedings of the merits to which those
records pertain. When the federal action is merely peripheral in this way, the
concerns regarding equity, comity and federalism that underlie both Younger and
O’Shea “have little force.” Steffel, 415 U.S. at 462. Indeed, the Supreme Court
has noted that Younger abstention is not appropriate when a federal action seeks to
require state courts to hold preliminary hearings because such hearings would be
ancillary to and not “prejudice the conduct of the trial on the merits.” Gerstein v.

44
#79656 v1 saf

Pugh, 420 U.S. 103, 108 n.9 (1975).
Applying Gerstein, this Court has declined to abstain under Younger when
the federal action raised issues that were merely peripheral to the state court
proceedings in which the issues arose. Sable Commc’ns, 890 F.2d at 190; L.H. v.
Jamieson, 643 F.2d 1351, 1354 (9th Cir. 1980). Other circuits have applied
Gerstein rather than Younger in similar situations. See, e.g., Habich v. City of
Dearborn, 331 F.3d 524, 530 (6th Cir. 2003) (declining Younger abstention when
federal lawsuit raised different substantive issues than state action).
Thus, in Parker v. Turner, the Sixth Circuit abstained under O’Shea only
after distinguishing the case before it from Gerstein:
First, Gerstein dealt with an issue which was collateral to a pending ...
proceeding. Second, the question raised in Gerstein was whether the
plaintiffs had a right to have a hearing. The very existence of a
hearing right was at issue. Third, the hearing right issue could not be
raised in any pending state court proceeding.
Parker, 626 F.2d at 8.11
Applying the same criteria, it is apparent that this case is governed by
Gerstein, not O’Shea. First, as noted above, the question of whether denying
access for days or weeks to newly filed complaints violates the First Amendment
11

In E.T., this Court quoted Parker as stating that “‘[w]hen the state agency in
question is a state court ... the equitable restraint considerations appear to be nearly
absolute.’” 2012 U.S. App. LEXIS 5147 at * 9. However, the Parker court
explained later, in the same decision, that the “near-absolute rule” it derived from
O’Shea and Younger was limited “to situations in which the relief sought would
interfere with the day-to-day conduct of state trials.” Parker, 626 F.2d. at 8.
45
#79656 v1 saf

right of access is peripheral and ancillary to the substantive civil litigation initiated
by the complaint. Second, as in Gerstein, and unlike Parker, Courthouse News is
not “objecting to the manner in which” the judges of the Ventura Superior Court
are adjudicating requests by the Ventura Clerk to delay access. Rather, it is the
fact that the Ventura Clerk is denying access through his across-the-board policies
even though such adjudication has not occurred that is at issue here, and this issue
can be resolved by a one-time injunction that involves no intrusion into the
adjudication of state court cases. Third, because Courthouse News is not a party to
the actions initiated by the complaints to which it seeks timely access, it will not
have the opportunity in the normal course of any of those actions to raise the issue
of access delays.12
C.

Federal Courts Have Not Abstained From Prior Actions Raising First
Amendment Challenges To State Court Restrictions On Access
Given the foregoing, it is not surprising that the federalism and comity

concerns that underlie both Younger and O’Shea have never previously prevented
federal courts from considering First Amendment challenges to restrictions on
access to state court records and proceedings. For example, in Hartford Courant, a

12

This Gerstein factor – that the federal court plaintiff lack the opportunity to have
the federal issue heard in the course of the state court proceeding in which it arises
– is satisfied even if the federal plaintiff could have intervened in the state court
proceeding. Green, 255 F.3d at 1102-04; Bickham v. Lashof, 620 F.2d 1238, 124445 (7th Cir. 1980). Nor is the federal plaintiff required to have filed a separate
state court lawsuit to adjudicate the issue. Habich, 331 F.3d at 530.
46
#79656 v1 saf

case strongly analogous to the instant action, several media companies brought a
§ 1983 action challenging the practice of the Connecticut state court system of
sealing the docket sheets of certain cases so that the public could not discover the
existence of litigation. 380 F.3d at 85-86. In Rivera-Puig, a reporter challenged
the constitutionality of a Puerto Rico court rule that closed all criminal preliminary
hearings. 983 F.2d at 322. Despite the presence of federalism and comity
concerns, derived chiefly from the fact that in each case similar actions had been
filed in the state/commonwealth courts (a factor not present here), both courts
rejected Younger abstention and held that federal court was an appropriate venue to
challenge a statute, administrative policy or the unauthorized actions of court
administrators that infringed the First Amendment right of court access. Hartford
Courant, 380 F.3d at 101; Rivera-Puig, 983 F.2d at 319-20.
Indeed, federal courts routinely entertain challenges by the media to orders
restricting media access to ongoing state court litigation over federalism and
comity objections precisely because access issues are ancillary and peripheral to
the state court proceedings in which they arise. As one federal court found in
considering a challenge to a state court order barring the attorneys in the case from
speaking to the media:
[T]he Court cannot agree that the challenged gag order is so essential
to the state court proceedings such that an injunction against the order
would amount to an injunction of the criminal prosecution itself.
Abstention under Younger is appropriate when a federal court acts to
47
#79656 v1 saf

frustrate a pending state court proceeding, by injunction, declaratory
judgment or similar mechanism, such that the proceedings are halted
or mooted. ... An injunction issuing from this Court against the
enforcement of the gag order in [the underlying case] would not
prohibit in any way the pending prosecution itself from going
forward. Any interference with the state proceedings would be
minimal and therefore cannot justify the eschewal of the Court’s
jurisdiction to protect the federal constitutional rights of the plaintiff.
Connecticut Magazine v. Moraghan, 676 F. Supp. 38, 41 (D. Conn. 1987)
(citations omitted); see also FOCUS v. Allegheny Cnty. Court of Common Pleas,
75 F.3d 834, 843 (3d Cir. 1996) (rejecting Younger abstention in federal court
challenge to state court gag order); In re Search Warrant, 923 F.2d 324, 328 (4th
Cir. 1991) (rejecting Younger abstention in federal court action to unseal search
warrant affidavit pertinent to state criminal proceeding); Fort Wayne JournalGazette v. Baker, 788 F. Supp. 379, 382-83 (N.D. Ind. 1992) (rejecting Younger
abstention in federal court challenge to state court protective order).
For all of these reasons, the district court’s order of dismissal on O’Shea
grounds must be reversed.
IV.
THE CASE SHOULD BE REMANDED FOR ADJUDICATION ON THE
MERITS OF COURTHOUSE NEWS’ WELL-PLED 42 U.S.C. § 1983
CLAIM FOR DENIAL OF ITS FIRST AMENDMENT RIGHT OF ACCESS
When it reverses a district court’s decision to abstain, this Court typically
remands the case for the district court to consider the merits in the first instance.
See, e.g., United States v. Morros, 268 F.3d 695, 697 (9th Cir. 2001) (“We hold
48
#79656 v1 saf

that abstention was improper and remand for adjudication on the merits.”).
But even if this Court were to reach the merits, dismissal could not be
affirmed on that ground, as Courthouse News’ complaint clearly alleges “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). As noted, the parties agree that Courthouse
News has a First Amendment right of access to the unlimited civil complaints filed
in Ventura Superior, and that such access must be timely. ER 25. What remains to
be determined is whether the evidence contained in the declarations supporting and
opposing Courthouse News’ motion for preliminary injunction that the district
court did not rule on shows the delays in access alleged in Courthouse News’
complaint, caused by the Ventura Clerk’s policies of denying access until after
“full processing,” ER 69-70, 114, can withstand First Amendment scrutiny.
Grounded in “common-law traditions predating the enactment of our
Constitution, the right of access belong[s] to the press and the general public” and
now “also has a First Amendment basis.” Grove Fresh, 24 F.3d at 897 (citing
Globe Newspaper Co., 457 U.S. at 603). Recognized first with respect to criminal
court proceedings,13 the constitutional right of access has been extended to court

13

Starting in 1980 with criminal trials, Richmond Newspapers, 448 U.S. at 573, the
Supreme Court recognized a First Amendment right of access to a range of
proceedings in criminal cases, including testimony, Globe Newspaper Co., 457
U.S. at 606, voir dire, Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 50913 (1984) (“Press-Enterprise I”), and preliminary hearings, Press-Enterprise II,
49
#79656 v1 saf

records in criminal cases, see, e.g., Associated Press, 705 F.2d at 1145 (finding “no
reason to distinguish between pretrial proceedings and the documents filed in
regard to them”), and “every lower court opinion of which we are aware that has
addressed the issue of First Amendment access to civil trials and proceedings has
reached the conclusion that the constitutional right of access applies to civil as well
as to criminal” proceedings and “to civil litigation documents filed in court as a
basis for adjudication.” NBC Subsidiary, 20 Cal. 4th at 1208-09 & n.25.14
The reason the First Amendment right of access has “‘been extended to civil
proceedings [is] because the contribution of publicity is just as important there.’”
Jackson, 2009 U.S. Dist. LEXIS 62300 at *10 (quoting Grove Fresh, 24 F.3d at
478 U.S. at 7-10; El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (1993)
(per curiam).
14

Although this Circuit has not specifically addressed the First Amendment right of
access to civil records and proceedings, several others “have concluded that the
First Amendment guarantees a qualified right of access not only to criminal but
also to civil trials and to their related proceedings and records.” New York Civil
Liberties Union v. New York City Transit Auth., 2011 U.S. App. LEXIS 26087,
*28 (2d Cir. July 20, 2011); accord, e.g., Publicker Indus. v. Cohen, 733 F.2d
1059, 1070 (3d Cir. 1984) (recognizing First Amendment right of access to civil
cases); Rushford v. New Yorker Magazine, Inc. 846 F.2d 249, 253 (4th Cir. 1988)
(“We believe that the more rigorous First Amendment standard should also apply
to documents filed in connection with a summary judgment motion in a civil
case.”); Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981) (“First Amendment
guarantees are implicated” when public scrutiny of civil court proceedings is
restricted); Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179
(6th Cir. 1983) (First Amendment right of access applies to documents filed in
civil litigation because, inter alia, “[i]n either the civil or the criminal courtroom,
secrecy insulates the participants, masking impropriety, obscuring incompetence,
and concealing corruption.”); In re Cont’l Ill. Secs. Litig., 732 F.2d 1302, 1308
(7th Cir. 1984) (First Amendment right to documentary evidence in civil cases).
50
#79656 v1 saf

897). “‘[I]n a society in which each individual has but limited time and resources
with which to observe at first hand the operations of his government, he relies
necessarily upon the press to bring to him in convenient form the facts of those
operations.’” Leigh, 2012 U.S. App. LEXIS 7731 at *21 (quoting Cox Broad.
Corp. v. Cohn, 420 U.S. 469, 490-91 (1975)). But the press cannot inform the
public that the powers of the judicial system have even been invoked if reporters
cannot see the newly filed complaints. “The filing of the complaint is likely to be
the first occasion that the public could become aware of the dispute,” Vassiliades v.
Israely, 714 F. Supp. 604, 606 (D. Conn. 1989), and denial of access to a
complaint thus “prevents the public from learning anything about th[e] action –
including its existence.” Standard Chartered Bank Int’l Ltd. v. Calvo, 757 F.
Supp. 2d 258, 260 (S.D.N.Y. 2010). Access to civil complaints, then, is essential
to safeguard the public’s “right to know” – once “a plaintiff invokes the Court’s
authority by filing a complaint” – “who is invoking it, and towards what purpose,
and in what manner.” In re NVIDIA Corp., 2008 U.S. Dist. LEXIS 120077 at *11.
As this Circuit has recognized, a delay in access of even “48 hours”
constitutes a denial of this constitutional right because “[t]he effect … is a total
restraint on the public’s first amendment right of access even though the restraint is
limited in time.” Associated Press, 705 F.2d at 1147. The reason for this rule –
that even temporary delays implicate constitutional concerns – is clear. “The

51
#79656 v1 saf

newsworthiness of a particular story is often fleeting. To delay or postpone
disclosure undermines the benefit of public scrutiny and may have the same result
as complete suppression.” Grove Fresh, 24 F.3d at 897; accord In re Charlotte
Observer, 882 F.2d 850, 856 (4th Cir. 1989) (even “a ‘minimal delay’ in access ...
unduly minimizes, if it does not entirely overlook, the value of ‘openness’ itself, a
value which is threatened whenever immediate access to ongoing proceedings is
denied, whatever provision is made for later public disclosure”).
Although the First Amendment right of access is not absolute, a denial of
access is constitutional only if supported “‘by an overriding interest based on
findings that closure is essential to preserve higher values and is narrowly tailored
to serve that interest.’” Phoenix Newspapers, Inc. v. U.S. Dist. Court, 156 F.3d
940, 946-47 (9th Cir. 1998) (quoting Press-Enterprise II, 478 U.S. at 9-10). In
Phoenix Newspapers, this Court reiterated the following three-part test for
determining whether a countervailing interest authorizes the restriction on access:
(1)

The existence of a right of comparable importance to the First

Amendment that is threatened by public access to the court records;
(2)

A substantial probability of irreparable damage to the asserted right

will result if access is not withheld; and
(3)

A substantial probability that alternatives to withholding access will

not adequately protect the asserted right.

52
#79656 v1 saf

156 F.3d at 949; accord, e.g., Associated Press, 705 F.2d at 1145-46.
Of course, the findings mandated to justify any denial of access cannot be
made at the pleading stage. Indeed, this Court recently emphasized the rule that “a
court cannot rubber-stamp an access restriction simply because the government
says it is necessary.” Leigh, 2012 U.S. App. LEXIS 7731 at *20. Rather, courts
must determine, based on the facts, whether restrictions on access are necessary to
protect “a compelling governmental interest, and is narrowly tailored to serve that
interest.” Globe Newspaper Co., 457 U.S. at 607.
The pleadings do not suggest, let alone support factual findings, that the
denial of access for the periods alleged by Courthouse News are “narrowly tailored
to serve such an interest and that no less restrictive means of achieving that interest
exists.” Jackson, 2009 U.S. Dist. LEXIS 62300 at *12-13. To the contrary, the
complaint alleges facts demonstrating exactly the opposite to be true – that many
courts can and do provide same-day access to new complaints even if they have
not been fully processed. ER 63-65, 69, 75-92, 116. At the very least, then,
Courthouse News’ complaint alleged a plausible claim that “the delay in the
availability of these documents is the ‘functional equivalent’ of an access denial
and is … unconstitutional.” Jackson, 2009 U.S. Dist. LEXIS 62300 at *10-11;
accord, e.g., Associated Press, 705 F.2d at 1147; In re Charlotte Observer, 882
F.2d at 856; Globe Newspaper Co., 868 F.2d at 504.

53
#79656 v1 saf

CONCLUSION
Over and over, this Court and the Supreme Court have recognized the First
Amendment right of access and imposed stringent procedural and substantive tests
for overcoming that presumptive right. In enacting 42 U.S.C. § 1983, Congress
provided a federal remedy for adjudicating violations of that right by state court
officials. It would be ironic, to say the least, if Courthouse News could not invoke
the federal court forum to adjudicate a deprivation of its First Amendment right of
access under 42 U.S.C. § 1983. But that is exactly what will result if the district
court’s decision is allowed to stand.
For all of the foregoing reasons, Courthouse News respectfully requests that
this Court reverse the district court’s order abstaining and dismissing Courthouse
News’ complaint under the Pullman and O’Shea abstention doctrines, and that this
Court issue an opinion clarifying that those abstention doctrines have no place in
cases like this one alleging violations of the First Amendment right of access by
state court officials.
DATED: May 29, 2012

BRYAN CAVE LLP
ROGER MYERS
RACHEL MATTEO-BOEHM
DAVID GREENE
LEILA KNOX
By: /s/ Rachel Matteo-Boehm
Rachel Matteo-Boehm
Attorneys for Plaintiff-Appellant
Courthouse News Service
54

#79656 v1 saf

STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, there are no known related cases
pending in this Court.
DATED: May 29, 2012

BRYAN CAVE LLP
ROGER MYERS
RACHEL MATTEO-BOEHM
DAVID GREENE
LEILA KNOX
By: /s/ Rachel Matteo-Boehm
Rachel Matteo-Boehm
Attorneys for Plaintiff-Appellant
Courthouse News Service

CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in
Rule 32(a)(7)(B)(i) of the Federal Rules of Appellate Procedure. This brief uses
14 point proportional type and contains 13,881 words, excluding the portions
exempted by Rule 32(a)(7)(B)(iii) of the Federal Rules of Appellate Procedure.
DATED: May 29, 2012

BRYAN CAVE LLP
ROGER MYERS
RACHEL MATTEO-BOEHM
DAVID GREENE
LEILA KNOX
By: /s/ Rachel Matteo-Boehm
Rachel Matteo-Boehm
Attorneys for Plaintiff-Appellant
Courthouse News Service

55
#79656 v1 saf

CERTIFICATE OF SERVICE
I hereby certify that on May 29, 2012, 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.
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.

/s/ Rachel Matteo-Boehm

#79656 v1 saf