Courthouse News Service v. Michael Planet

Filing 13

OPPOSITION to EX PARTE APPLICATION to Continue Hearing on Plaintiff's Motion for Preliminary Injunction from November 7, 2011 to January 17, 2012 #12 filed by Plaintiff Courthouse News Service. (Attachments: #1 Proposed Order)(Matteo-Boehm, Rachel)

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1 2 3 4 5 6 7 8 9 10 Rachel Matteo-Boehm (SBN 195492) rachel.matteo-boehm@hro.com David Greene (SBN 160107) david.greene@hro.com Leila C. Knox (SBN 245999) leila.knox@hro.com HOLME ROBERTS & OWEN LLP 560 Mission Street, Suite 250 San Francisco, CA 94105-2994 Telephone: (415) 268-2000 Facsimile: (415) 268-1999 Attorneys for Plaintiff COURTHOUSE NEWS SERVICE 11 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 12 13 14 Courthouse News Service, 15 Plaintiff, 16 17 18 19 v. Michael D. Planet, in his official capacity as Court Executive Officer/Clerk of the Ventura County Superior Court. 20 Defendant. 21 CASE NO. CV11-08083 R (MANx) OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON MOTION FOR PRELIMINARY INJUNCTION Courtroom: G-8 (2nd Floor) The Hon. Manuel L. Real 22 23 24 Plaintiff Courthouse News Service (“Courthouse News”) hereby opposes 25 Defendant’s Ex Parte Application for an Order Continuing Courthouse News 26 Service’s Motion for Preliminary Injunction currently set for hearing on November 7, 27 2011. Courthouse News is certainly willing to grant Defendant a reasonable extension 28 1 OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON MOTION FOR PRELIMINARY INJUNCTION #74596 v1 saf Case No. CV11-08083R (MANx) 1 of time in which to prepare its opposition papers and is willing to coordinate a briefing 2 schedule so that Defendant’s planned Motion to Dismiss can be heard at the same time 3 as the Motion for Preliminary Injunction, thus providing an efficiency to both the 4 parties and the Court. And Courthouse News is further willing to extend the time for 5 Defendant to answer or otherwise respond to the Complaint so that Defendant will not 6 be required to file a Motion to Dismiss while the Motion for Preliminary Injunction is 7 pending. But given the serious and ongoing deprivation of First Amendment rights 8 that is the basis of the lawsuit, Courthouse News opposes Plaintiff’s request that the 9 Motion for Preliminary Injunction be delayed for more than two months. 10 I. 11 NATURE OF THE ACTION 12 By this action, Courthouse News contests the practice of the Court Executive 13 Officer/Clerk of the Ventura County Superior Court, Defendant Michael D. Planet, of 14 denying Courthouse News Service access to new civil complaints on the same day 15 those records have been filed with the court. Defendant’s characterization of 16 Courthouse News as seeking “virtually instant access” is inaccurate. As set forth in 17 detail in Courthouse News’ Motion for Preliminary Injunction and supporting papers, 18 Courthouse News Service is seeking only that access which has routinely and 19 traditionally been granted to the press in other state and federal courts. 20 Under current conditions at Ventura Superior, delays in access range from one 21 day to several weeks. As set forth in the Complaint and the papers supporting 22 Courthouse News Service’s Motion for Preliminary Injunction, Defendant has taken 23 the position that he will not provide access to these new complaints until they are 24 subjected to “the requisite processing.” Courthouse News’ Motion for Preliminary 25 Injunction seeks an order preventing Defendant from enforcing this policy that has 26 resulted in these delays in access. 27 28 2 OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON MOTION FOR PRELIMINARY INJUNCTION #74596 v1 saf Case No. CV11-08083R (MANx) 1 II. 2 COURTHOUSE NEWS’ PROPOSED ACCOMMODATION TO DEFENDANT 3 On September 29, 2011, Courthouse News Service filed and served its 4 Complaint in this matter. At the same time, Courthouse News filed and served a 5 Motion for Preliminary Injunction and noticed the hearing on that motion for 6 November 7, 2011. On the afternoon of Friday, October 7, 2001, counsel for 7 Defendant notified Courthouse News’ counsel that it was representing Defendant and 8 indicated that it wished to discuss certain scheduling matters relating to Defendant’s 9 response to the Complaint and Motion for Preliminary Injunction. 10 On the morning of Monday, October 10, 2011, counsel for the parties spoke by 11 telephone. During that call, Defendant’s counsel requested that Courthouse News 12 agree to continue the hearing and all briefing on its Motion for Preliminary Injunction 13 until after the Court could hear and decide a Motion to Dismiss that Defendant 14 intended to bring. Defendant’s counsel proposed that the Motion for Preliminary 15 Injunction not be heard until January 17, 2011, a delay of almost two-and-a-half 16 months. 17 Courthouse News’ counsel stated its objection to Defendant’s proposal, 18 explaining that the ongoing violation of Courthouse News Service’s and the public’s 19 First Amendment rights was substantial and the proposed delay was thus 20 unacceptable. Counsel, however, indicated that it was willing to work with Defendant 21 to devise a calendar that would give Defendant more time to file its opposition to the 22 Motion for Preliminary Injunction, as well as allowing it time to notice a hearing on 23 its planned Motion to Dismiss for the same date as the Motion for Preliminary 24 Injunction. By follow-up email, counsel proposed the following schedule: 25 October 31, 2011: 26 November 7, 2011: Reply papers (for both motions) due 27 November 21, 2011: Hearing (for both motions). 28 Opposition papers (to both motions) due 3 OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON MOTION FOR PRELIMINARY INJUNCTION #74596 v1 saf Case No. CV11-08083R (MANx) 1 2 Declaration of Erica L. Reilley in Support of Defendant’s Ex Parte Application, Exh. 3 D.1 Under this schedule, the last day for Defendant to file a motion to dismiss would 4 be October 24, 2011. 5 Courthouse News believes that this proposal allows Defendant more time to 6 prepare its opposition papers, without unduly delaying the Court’s evaluation of the 7 necessity and appropriateness of preliminary relief. Moreover, this proposal creates 8 the efficiency of having the motions heard on the same day. 9 10 Defendant rejected Courthouse News’ proposal and thus moved this Court ex parte to continue the Motion for Preliminary Injunction.2 11 III. 12 DEFENDANT’S REQUEST FOR A CONTINUANCE SHOULD BE DENIED BECAUSE IT IS UNNECESSARY AND WASTEFUL OF THE COURT’S AND THE PARTIES’ RESOURCES 13 14 15 16 17 18 19 This Court should reject Defendant’s ex parte application for a continuance because it is both unnecessary and wasteful. Defendant’s argument to the contrary, in which it contends that the consideration of its motion to dismiss first will be more efficient, requires this Court to assume that Defendant’s motion will be successful. As is evident from Defendant’s papers, however, Defendant itself has not even fully considered the specific grounds it will raise for dismissal. 20 21 Any defenses that Defendant will eventually formulate can be properly raised in its opposition to the Motion for Preliminary Injunction as part of proving an absence 22 23 1 25 Defendant’s statement that Courthouse News insisted that its Motion for Preliminary Injunction be heard before Defendant’s motion to dismiss is incorrect, as Defendant’s own declaration makes clear. Reilley Decl., Exhs. B, D. 26 2 24 27 28 Because Defendant rejected this proposal, Courthouse News has not yet cleared its suggested November 21 hearing date with the court clerk. However, according to the court’s web site, this date is not closed. 4 OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON MOTION FOR PRELIMINARY INJUNCTION #74596 v1 saf Case No. CV11-08083R (MANx) 1 of a likelihood of success on the merits. There is no reason to have a separate motion 2 and a separate proceeding. 3 Even if Defendant does want to bring a separate motion to dismiss, there is no 4 reason to delay the Court’s consideration of the Motion for Preliminary Injunction in 5 the way Defendant proposes. Defendant will not waive any defense by opposing the 6 Motion for Preliminary Injunction. Indeed, from Defendant’s brief description of the 7 grounds of its anticipated motion to dismiss, it is likely that the motion to dismiss will 8 touch on issues pertinent to the Motion for Preliminary Injunction, including the 9 contours and origins of Defendant’s “requisite processing” policy that results in the 10 denial of access to court records. And as indicated above, under the proposal made by 11 Courthouse News that Defendant has rejected, Defendant could bring a separate 12 motion to dismiss to be heard on the same day as the Motion for Preliminary 13 Injunction. 14 IV. 15 COURTHOUSE NEWS SERVICE AND ITS SUBSCRIBERS SUFFER AN ONGOING VIOLATION OF FIRST AMENDMENT RIGHTS AS LONG AS DEFENDANT’S ACCESS POLICY IS NOT ENJOINED 16 17 18 19 20 21 22 23 24 25 Defendant’s request for a continuance should also be denied because it would delay the Court’s consideration of injunctive relief to address a continuing deprivation of First Amendment rights. As set forth in detail in the papers supporting Courthouse News’ Motion for Preliminary Injunction, Defendant’s policy of not permitting the media to review those records until “the requisite processing has been completed” has resulted in a situation in which new complaints are effectively sealed for days or even weeks after they are filed. Should this Court grant Defendant’s ex parte application and ultimately find Courthouse News’ Motion for Preliminary Injunction warranted, the resultant delay will have caused an unnecessary constitutional injury. 26 27 28 5 OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON MOTION FOR PRELIMINARY INJUNCTION #74596 v1 saf Case No. CV11-08083R (MANx) 1 V. 2 CONCLUSION 3 For the foregoing reasons, Courthouse News Service respectfully requests that 4 Defendant Michael Planet’s ex parte application for an order continuing the hearing 5 on Plaintiff Courthouse News Service’s Motion for Preliminary Injunction be denied. 6 7 Date: October 11, 2011 8 9 10 HOLME ROBERTS & OWEN LLP RACHEL MATTEO-BOEHM DAVID GREENE LEILA KNOX By: 11 /s/ Rachel Matteo-Boehm Rachel Matteo-Boehm Attorneys for Plaintiff COURTHOUSE NEWS SERVICE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON MOTION FOR PRELIMINARY INJUNCTION #74596 v1 saf Case No. CV11-08083R (MANx)

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