Courthouse News Service v. Michael Planet
Filing
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NOTICE OF MOTION AND MOTION to Dismiss Case and Abstain filed by Defendant Michael Planet. Motion set for hearing on 11/21/2011 at 10:00 AM before Judge Manuel L. Real. (Attachments: #1 Notice, #2 Proposed Order)(Reilley, Erica)
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Robert A. Naeve (State Bar No. 106095)
rnaeve@jonesday.com
Erica L. Reilley (State Bar No. 211615)
elreilley@jonesday.com
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, California 92612
Telephone: (949) 851-3939
Facsimile: (949) 553-7539
Attorneys for Defendant
MICHAEL PLANET, IN HIS OFFICIAL
CAPACITY AS COURT EXECUTIVE
OFFICER/CLERK OF THE VENTURA
COUNTY SUPERIOR COURT
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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COURTHOUSE NEWS SERVICE,
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Plaintiff,
v.
MICHAEL PLANET, IN HIS
OFFICIAL CAPACITY AS COURT
EXECUTIVE OFFICER/CLERK OF
THE VENTURA COUNTY
SUPERIOR COURT,
Defendant.
Case No. CV11-08083 R (MANx)
Assigned for all purposes to
Hon. Manuel L. Real
MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT OF DEFENDANT’S
MOTION TO DISMISS AND
ABSTAIN
Date:
Time:
Courtroom:
November 21, 2011
10:00 a.m.
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Memo Supporting Motion to Dismiss and Abstain
Case No. CV 11-08083 R (MANx)
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TABLE OF CONTENTS
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INTRODUCTION ..................................................................................................... 1
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FACTUAL BACKGROUND.................................................................................... 2
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A.
California Law Grants To All Members Of The Public,
Including The Press, The Right Of “Reasonable Access” To
Documents Filed In California’s Courts. .............................................. 2
B.
CNS Insisted That The Ventura Superior Court’s Clerk’s Office
Provide “Same-Day Access” To Newly Filed Civil Unlimited
Complaints. ........................................................................................... 3
C.
CNS’s Complaint Asks This Court To Create Constitutional
And Common-Law Rights To “Same-Day Access” To
Unlimited Civil Complaints, Except As Deemed Permissible
Following A “Case-By-Case” Adjudication Of Individual
Claims. .................................................................................................. 6
D.
What CNS’s Complaint Fails To Allege. ............................................. 7
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1.
CNS Sponsored SB 326 —A Bill That Would Provide
The Precise Relief CNS Seeks Here. .......................................... 8
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2.
Ventura Superior Court Is Not An Electronic Filing Court........ 9
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3.
CNS Has Not Attempted To Seek Appropriate Relief In
State Court. ............................................................................... 10
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ARGUMENT ........................................................................................................... 10
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I.
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THIS COURT SHOULD ABSTAIN FROM HEARING THIS CASE. ...... 10
A.
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This Court Should Equitably Abstain From Hearing This Matter
Pursuant To O’Shea v. Littleton. ......................................................... 11
1.
CNS’s Complaint Seeks The Exact Sort of Intervention
With State Judicial Administration That O’Shea
Condemns. ................................................................................ 13
2.
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CNS’s Current Legislative Attempts For Relief
Underscore The Wisdom In This Court’s Abstention. ............. 14
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B.
This Court Should Abstain From Hearing This Matter Pursuant
To Railroad Comm’n of Texas v. Pullman Co.................................... 15
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Case No. CV 11-08083 R (MANx)
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II.
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CNS’S FIRST AND SECOND CLAIMS FOR RELIEF FAIL TO
STATE A CLAIM FOR A CONSTITUTIONAL OR FEDERAL
COMMON LAW “RIGHT” OF SAME-DAY ACCESS TO NEWLY
FILED UNLIMITED CIVIL COMPLAINTS. ............................................. 18
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A.
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The First Claim For Relief Should Be Dismissed Because The
First Amendment Does Not Guarantee Same-Day Access. ............... 19
1.
First Amendment Public Rights Of Access To Court
Records Are Governed By “Experience And Logic.” .............. 19
2.
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Historic “Experience” Does Not Recognize A Right To
Same-Day Access To Court Records. ...................................... 19
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a.
There Is No Historic Right To Same-Day Access
As A Matter Of Law....................................................... 19
b.
The Courtesies Extended To CNS By Some Courts
Does Not Otherwise Establish An Historic Right
To Same-Day Access. .................................................... 21
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3.
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B.
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III.
“Logic” Does Not Recognize A Right To Same-Day
Access, Either. .......................................................................... 21
The Second Claim For Relief Should Be Dismissed Because
Federal Common Law Does Not Guarantee Same-Day Access.. ...... 23
THE ELEVENTH AMENDMENT BARS CNS’S THIRD CLAIM
FOR RELIEF FOR VIOLATION OF CALIFORNIA RULE OF
COURT 2.550. .............................................................................................. 24
CONCLUSION........................................................................................................ 25
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Case No. CV 11-08083 R (MANx)
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TABLE OF AUTHORITIES
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Cases
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Ad Hoc Comm. on Judicial Admin. v. Massachusetts, 488 F.2d
1241 (1st Cir. 1973)........................................................................................ 12
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Almodovar v. Reiner, 832 F.2d 1138 (9th Cir. 1987) ............................................... 17
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Ashcroft v. Iqbal, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) .................................... 7
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Cal. Mother Infant Program v. Cal. Dep't of Corrs., 41 F. Supp.
2d 1123 (S.D. Cal. 1999)................................................................................ 24
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Canton v. Spokane Sch. Dist. # 81, 498 F.2d 840 (9th Cir. 1974) ........................... 16
11
Cent. Reserve Life of N. Am. Ins. Co. v. Struve, 852 F.2d 1158
(9th Cir. 1988) ................................................................................................ 24
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13
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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct.
1487, 84 L. Ed. 2d 494 (1985) ....................................................................... 22
15
County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 3 L.
Ed. 2d 1163, 79 S. Ct. 1060 (1958) ................................................................ 16
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C-Y Dev. Co. v. Redlands, 703 F.2d 375 (9th Cir. 1983) ......................................... 18
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Durning v. Citibank, N.A., 950 F.2d 1422 (9th Cir. 1991)....................................... 24
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E.T. v. Cantil-Sakauye, No. 10-15248 (9th Cir. Sept. 13, 2011).............................. 12
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E.T. v. George, 681 F. Supp. 2d 1151 (E.D. Cal. 2010)........................................... 12
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Estate of Hearst, 67 Cal.App.3d 777, 136 Cal. Rptr. 821 (1977) ............................. 2
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Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968) .................... 11
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Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898,
61 L. Ed. 2d 608 (1979) ................................................................................. 20
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.
Ct. 2613, 73 L. Ed. 2d 248 (1982).................................................................. 19
Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103
(9th Cir.1987) ................................................................................................. 24
Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321,
81 L. Ed. 2d 186 (1984) ................................................................................. 16
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Hibernia Savings and Loan Soc. v. Boyd, 155 Cal. 193, 100 P. 239 (1909).............. 2
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Horne v. Flores, 129 S. Ct. 2579, 174 L. Ed. 2d 406 , 557 U.S.
__ (2009) ........................................................................................................ 11
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Hughes v. Lipscher, 906 F.2d 961 (3d Cir. 1990) .................................................... 17
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In re Marriage of Burkle, 135 Cal. App. 4th 1045, 37 Cal. Rptr.
3d 805 (2006) ................................................................................................. 20
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In re Marriage of Mosley, 190 Cal. App. 4th 1096, 82 Cal.
Rptr. 3d 497 (2010) .......................................................................................... 3
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In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 113 Cal.
Rptr. 3d 629 (2010) .......................................................................................... 2
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Kaufman v. Kaye, 466 F.3d 83 (2d Cir. 2006) ......................................................... 14
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Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099, 87 L. Ed.
2d 114 (1985) ................................................................................................. 24
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Los Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 697 (9th Cir. 1992) ........................... 12
Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660,75 L. Ed. 2d
675 (1983) ...................................................................................................... 10
Lucien v. Johnson, 61 F.3d 573 (7th Cir. 1995) ....................................................... 22
Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992) ...................................................... 13
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Missouri v. Jenkins, 515 U.S. 70, 115 S. Ct. 2038, 132 L. Ed.
2d 63 (1995) ................................................................................................... 10
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Moss v. United States Secret Serv., 572 F.3d 962 (9th Cir. 2009) ............................. 7
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NBC Subsidiary (KNBC-TV) v. Superior Court, 20 Cal. 4th
1178, 86 Cal. Rptr. 2d 778 (1999).................................................................... 2
New York Civil Liberties Union v. New York City Transit Auth.,
652 F.3d 247 (2d Cir. 2011) ........................................................................... 20
Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S. Ct.
1306 55 L. Ed. 2d 570 (1978) .......................................................................... 4
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O’Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d
674 (1974) ...................................................................................................... 11
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Parker v. Turner, 626 F.2d 1 (6th Cir. 1980) ........................................................... 12
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Pearl Investment Co. v. City and County of San Francisco, 774 F.2d
1460 (9th Cir. 1985), cert. denied, 476 U.S. 1170 (1986) ............................. 16
Pennhurst State School & Hosp. v. Helderman, 465 U.S. 89,
104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) ......................................................... 25
Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.
Ct. 819, 78 L. Ed. 2d 629 (1984).................................................................... 19
Press-Enterprise Co. v. Superior Court, 478 US 1, 106 S. Ct.
2735, 92 L. Ed. 2d 1 (1986) ........................................................................... 19
Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct.
643, 85 L. Ed. 971 (1941) .............................................................................. 16
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Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.
Ct. 2814, 65 L. Ed. 2d 973 (1980).................................................................. 19
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Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976) ................... 11
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Rushford v. New Yorker Mag., 846 F.2d 249 (4th Cir. 1988) .................................. 20
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Simmons v. Sacramento County Superior Court, 318 F.3d 1156
(9th Cir. 2003) ................................................................................................ 25
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Smelt v. County of Orange, 447 F.3d 673 (9th Cir.), cert.
denied, 549 U.S. 959 (2006) .......................................................................... 16
United States v. Edwards, 823 F.2d 111 (5th Cir. 1987) ......................................... 22
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S. Ct.
2304, 105 L. Ed. 2d 45 (1988) ....................................................................... 24
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Statutes
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42 U.S.C. § 1983......................................................................................................... 6
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Cal. Civ. Proc. Code § 1904 ....................................................................................... 3
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Cal. Gov’t Code § 68150(c) ....................................................................................... 3
Cal. Gov’t Code § 68150(l) ........................................................................................ 3
Cal. Gov’t Code § 68151(a)(1) ................................................................................... 3
Cal. Gov’t Code § 811.9 ........................................................................................... 25
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Other Authorities
9th Cir. Gen. Order 5.5(d) ........................................................................................ 12
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Rules
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Cal. R. Ct. 2.400(a) ..................................................................................................... 3
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Cal. R. Ct. 2.500(a) ..................................................................................................... 3
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Cal. R. Ct. 2.503(a) ..................................................................................................... 3
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Cal. R. Ct. 2.550(c) ..................................................................................................... 3
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Constitutional Provisions
U.S. Const., Art. III, §§ 1, 2 ..................................................................................... 10
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INTRODUCTION
Plaintiff Courthouse News Service (“CNS”), a purportedly widely read legal
news wire service, seeks broad declaratory and injunctive relief against Michael D.
Planet, in his official capacity as Executive Officer and Clerk of the Superior Court
of California, County of Ventura (“Mr. Planet” or the “Ventura Superior Court”).
The gravamen of CNS’s lawsuit rests on the misplaced notion that it has a
constitutional or common law right to “same-day access” to all newly filed
unlimited civil complaints. Specifically, CNS complains that “any delay in the
reporter’s ability to review a newly filed complaint necessarily creates delay in
[CNS’s] ability to inform interested persons of the factual and legal allegations in
those complaints . . . .” (Compl., ¶ 18 (emphasis added).) CNS further complains
that purportedly increasing access delays at Ventura Superior Court, and an alleged
“policy” that CNS (and every other member of the public) cannot have access to
new filings at that court until the requisite document processing is completed has
resulted in new filings being “as good as sealed,” in violation of the First and
Fourteenth Amendments to the U.S. Constitution, federal common law, and the
California Rules of Court. (Id., ¶ 6.) Thus, CNS wants nearly instantaneous access
to all newly filed unlimited civil complaints.
CNS can cite to no case holding that the First Amendment protects a news
agency’s right to “same-day access” to newly filed complaints. Instead, it claims
that because certain other courts are able to extend the courtesy of “same-day
access”, this Court should make such access a constitutional mandate. But the law
does not countenance such a decree, and for good reason. First, CNS’s request that
this federal district court involve itself in the administration of the state’s judicial
system runs afoul of settled principles of federalism, comity, and institutional
competence—all of which urge this Court to exercise its discretion to abstain from
hearing the matter at all. Second, CNS’s first and second claims for relief for
Memo Supporting Motion to Dismiss and Abstain
Case No. CV 11-08083 R (MANx)
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violation of the First Amendment to the United States Constitution and federal
common law fail to state a claim upon which relief may be granted, as there simply
is no constitutional or common-law right to “same-day access” to newly filed
unlimited civil complaints. Third, CNS’s third claim for relief, which alleges that
the Ventura Superior Court violates California Rule of Court 2.550, runs afoul of
the Eleventh Amendment, and is barred. Ventura Superior Court’s motion should
be granted, and the entire action should be dismissed accordingly.
FACTUAL BACKGROUND
A.
California Law Grants To All Members Of The Public, Including
The Press, The Right Of “Reasonable Access” To Documents Filed
In California’s Courts.
It has long been settled in California that members of the public have a right
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of access to “adjudicative proceedings and filed documents of trial and appellate
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courts.” NBC Subsidiary (KNBC-TV) v. Superior Court, 20 Cal. 4th 1178, 1212, 86
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Cal. Rptr. 2d 778 (1999). This is because “the public has an interest, in all civil
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cases, in observing and assessing the performance of its public judicial system . . .
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.” Id. at 1210; see also Hibernia Savings and Loan Soc. v. Boyd, 155 Cal. 193, 200,
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100 P. 239 (1909) (“A judicial record is a public writing . . . .”); In re Marriage of
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Nicholas, 186 Cal. App. 4th 1566, 1575, 113 Cal. Rptr. 3d 629 (2010) (“A strong
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presumption exists in favor of public access to court records in ordinary civil
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trials”); Estate of Hearst, 67 Cal.App.3d 777, 784, 136 Cal. Rptr. 821 (1977)
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(“[T]he public has a legitimate interest in access to public records, such as court
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documents.”).
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The California Legislature codified this right of access in Government Code
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section 68150. In particular, the Legislature mandated in section 68150(l) that,
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“[u]nless access is otherwise restricted by law,” court records of all types, including
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paper and electronic, “shall be made reasonably accessible to all members of the
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public for viewing and duplication as the paper records would have been
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accessible.” Cal. Gov’t Code § 68150(l) (emphasis added). Significantly, this right
of “reasonable access” extends to documents only after they have been “filed . . . in
the case folder, but if no case folder is created by the court, all filed papers and
documents that would have been in the case folder if one had been created.” Cal.
Gov’t Code § 68151(a)(1); see also Cal. Civ. Proc. Code § 1904 (defining “judicial
record”).
The Legislature directed the Judicial Council of California to “adopt rules to
establish the standards or guidelines for the creation, maintenance, reproduction, or
preservation of court records . . . .” Cal. Gov’t Code § 68150(c). The Judicial
Council complied with the Legislature’s directive by adopting Title 2, Division 4 of
the Rules of Court relating to maintenance of and access to trial court records. As
is relevant to these proceedings, Rule of Court 2.400(a) provides that, “Only the
clerk may remove and replace records in the court’s files,” and that, “[u]nless
otherwise provided by these rules or ordered by the court, court records may only
be inspected by the public in the office of the clerk.” Cal. R. Ct. 2.400(a). The
Rules of Court further acknowledge that “[u]nless confidentiality is required by
law, court records are presumed to be open,” Cal. R. Ct. 2.550(c), and that the
public has a right of “reasonable access” to them. E.g., Cal. Rs. Ct. 2.500(a),
2.503(a). See generally In re Marriage of Mosley, 190 Cal. App. 4th 1096, 110203, 82 Cal. Rptr. 3d 497 (2010).
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CNS Insisted That The Ventura Superior Court’s Clerk’s Office
Provide “Same-Day Access” To Newly Filed Civil Unlimited
Complaints.
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CNS claims to be “a widely-read legal news wire service with thousands of
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subscribers across the nation . . . .” (Compl., ¶ 4.) Its “core news publications are
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its new litigation reports, which are e-mailed to its subscribers and contain staff-
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written summaries of all significant new civil complaints filed in a particular court.”
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(¶15.) To obtain these summaries, CNS assigns “reporters” to various courthouses
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B.
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with the instruction to review newly-filed “unlimited jurisdiction” civil complaints
in which the matter in controversy exceeds $25,000. (Compl., ¶ 18.)
Significantly, CNS does not seek the same “reasonable access” to new case
filings afforded to members of the general public. Cf. Nixon v. Warner
Communications, Inc., 435 U.S. 589, 98 S. Ct. 1306 55 L. Ed. 2d 570 (1978)
(holding that members of the media generally have no greater rights or privileges
than do members of the general public). Instead, CNS explicitly alleges that it is
constitutionally entitled to what amounts to immediate or “same-day access” to
newly filed unlimited civil complaints, ostensibly because this “ensures that
interested members of the public learn about new civil litigation while the initiation
of that litigation is still newsworthy . . . . .” (Compl., ¶¶ 4, 18.)
For most of the time periods alleged in its complaint, CNS did not seek to
obtain “same-day access” to filings in Ventura Superior Court. Instead, CNS
alleges that from 2000 to 2010, CNS’s reporter only visited the Ventura Superior
Court’s clerk’s office “once or twice a week” to review new complaints maintained
in a “media bin.” (Id., ¶¶ 22-25.) Hence, whatever delays CNS may have
experienced during this period of time has little bearing on the substance of its
current claim to “same-day access” to civil filings.
CNS changed its business model in November 2010 by asking one of its
reporters to visit the Ventura Superior Court’s clerk’s office every day. (Id., ¶ 25.)
However, rather than seek the same access as the clerk’s office grants to other
members of the general public, CNS asked for more. In particular, CNS alleges at
paragraph 25 of its complaint that it asked Ventura Superior Court should “adjust”
its procedures to grant “same-day access” to unlimited civil complaints not because
other members of the public obtained “same-day access” to complaints in Ventura,
but because courts in other jurisdictions allegedly have the ability to do so:
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CNS alleges tha it sent a J
at
June 20, 20 deman letter to Mr. Plane attached
011
nd
et,
d
11
s
mplaint. (Id ¶ 26.) T deman letter ex
Id.,
The
nd
xplains that courts in
t
as Exhibit 2 to its Com
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ot
ther jurisdi
ictions, inc
cluding fed
deral courts that have adopted electronic f
s
filing
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th
hrough the PACER sy
ystem, hav the abilit to grant “same-day access” t CNS
ve
ty
y
to
14
re
eporters. (I ¶ 26 & Ex. 2.) M Planet r
Id.,
Mr.
responded to CNS’s J
June 20, 20
011
15
de
emand lette on July 11, 2011. (Id., ¶ 27 & Ex. 3.) He explain that, w
er
ned
while it was
s
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no possible for the court to prov “same-day acces to all ci compla
ot
vide
ss”
ivil
aints, the
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co would continue m
ourt
d
make files available “ early a practicab
“as
as
ble:”
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(Id ¶ 27 & Ex. 3.)
Id.,
27
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CNS alleges that, since receipt of the July 11, 2011 response from Mr.
Planet, its reporters have not obtained ““same-day access”” to all newly filed civil
unlimited complaints filed in the Ventura Superior Court. (¶¶ 29-30).
C.
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CNS’s Complaint Asks This Court To Create Constitutional And
Common-Law Rights To “Same-Day Access” To Unlimited Civil
Complaints, Except As Deemed Permissible Following A “CaseBy-Case” Adjudication Of Individual Claims.
CNS’s complaint contains three claims for relief, the first two of which are
asserted pursuant to 42 U.S.C. § 1983:
1.
First Claim for Relief. CNS alleges that Ventura Superior Court
violates the First Amendment to the United States Constitution by delaying access
to new civil unlimited complaints and by failing to provide “timely, same-day
access to new civil unlimited complaints.” (Id., ¶¶ 32-35.)
2.
Second Claim for Relief. CNS alleges that Ventura Superior Court
violates federal common law by delaying access to new civil unlimited complaints
and by failing to provide “timely, same-day access to new civil unlimited
complaints.” (Id., ¶¶ 37-39.)
3.
Third Claim for Relief. Finally, CNS claims that, by failing to provide
“timely, same-day access” to newly filed unlimited civil complaints, Ventura
Superior Court has “effectively seal[ed]” these complaints, in violation of
California Rule of Court 2.550. (Id., ¶¶ 41-43.)
This is not a case in which the plaintiff seeks the standard prohibitory
injunction designed to maintain the status quo pending trial. Instead, as can be seen
from paragraph 1 of CNS’s prayer for relief, CNS effectively seeks a stringent
mandatory injunction that is designed to alter the status quo pending trial by
requiring Ventura Superior Court to cease denying “same-day access” to civil
unlimited complaints:
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In add
dition, CNS asks this Court to e
S
s
enter a dec
claratory ju
udgment th Ventura
hat
a
11
Su
uperior Co
ourt’s failur to provide “same-d access to newly filed unlim
re
day
s”
y
mited civil
l
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co
omplaints violates the First Am
v
e
mendment, f
federal com
mmon law and Califo
ornia Rule
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of Court 2.550:
f
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D.
What CN
NS’s Comp
plaint Fail To Alleg
ls
ge.
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At the motion to dismiss s
e
o
stage, this C
Court is ob
bligated to assume th truth of
he
24
th complain allegat
he
nt’s
tions. See Ashcroft v Iqbal, 12 S. Ct. 19
v.
29
937, 173 L Ed. 2d
L.
25
86 (2009); Moss v. U
68
United State Secret S
es
Serv., 572 F
F.3d 962, 9 (9th Ci 2009).
969
ir.
26
Nonetheless three not
s,
table omiss
sions are w
worthy of comment.
27
28
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1
1.
2
CNS Sponsored SB 326 —A Bill That Would Provide The Precise
Relief CNS Seeks Here.
3
CNS’s Complaint repeatedly suggests that it is entitled to “same-day access”
4
to newly filed unlimited civil complaints because such access historically has been
5
granted. However, CNS fails to disclose that it made the precise opposite claim
6
when it sponsored a “same-day access” bill known as Senate Bill 326 in the
7
California Legislature. (RJN, Ex. A1 [Cal. Senate Bill 326].) There, CNS claimed
8
that: (a) Government Code section 68150 already “provides the public with
9
reasonable access to court records;” (b) the term “reasonable access” is not defined;
10
(c) “many other courts have failed and refused to provide a system whereby the
11
public has access to court record information in a timely manner;” and (d) for these
12
reasons, legislation is necessary to “require the Judicial Council of California to
13
adopt a rule or rules of court to require courts to provide public access to case-
14
initiating civil and criminal court records, as defined, by no later than the end of the
15
day on which those records are received by the court.” (Id., Ex. B [Cal. Senate
16
Judiciary Comm. May 3, 2011 Bill Analysis].)
17
CNS also failed to disclose that the Judicial Council of California has
18
objected to SB 326, advising that, “[w]hile the Council strongly favors timely
19
public access to court records that are subject to public disclosure, SB 326 sets a
20
standard for access that cannot be achieved without a significant increase in court
21
staffing.” (Id., Ex. C [Apr. 27, 2011 Letter].) Subsequent revisions were made to
22
the bill, and Judicial Council changed its position to neutral. (Id., Ex. D [June 9,
23
2011 Letter].) With those revisions and Judicial Council’s neutral position, SB
24
326 passed in the Senate on May 31, 2011. (Id., Ex. E [Complete Bill History].)
25
26
27
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After passing out of the Assembly Judiciary Committee with the amendments
required by the Senate Judiciary Committee, the bill was subsequently amended in
1
All citations to “RJN, Ex. __” are to the exhibits attached to Mr. Planet’s
concurrently filed Request for Judicial Notice in Support of Motion to Abstain and
Dismiss.
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the Assembly Appropriations Committee a number of times. The latest version of
CNS’s proposed bill eliminated the key facets of the Senate Judiciary Committee’s
revisions, and Judicial Council renewed its opposition, which highlighted the
unworkable mandate of SB 326, particularly in light of ever-increasing state court
budget cuts:
Subsequent to the Senate Judiciary Committee hearing, the
ongoing cuts to the judicial branch in the budget were increased
by an additional $150 million. Most courts were not in a
position to comply with the same day mandate in SB 326 before
these additional cuts were enacted, but in the face of even
deeper reductions, courts will not have sufficient staff available
to fulfill the requirements of SB 326.
(Id., Ex. F [Aug. 8, 2011 Letter] at 2.) The bill was held in the Assembly
Appropriations Committee at the time the committee reviewed those bills with
significant fiscal impact, and despite a further amendment taken on September 1,
2011, it remains in that committee. (Id., Ex. E [Complete Bill History].)
2.
Ventura Superior Court Is Not An Electronic Filing Court.
CNS’s Complaint purports to make much of the fact that other courts
allegedly provide it with “same-day access” to newly filed unlimited civil
complaints. As its primary examples, CNS alleges that this Court and other U.S.
District Courts in California provide “same-day access.” (Compl., ¶ 11.) CNS also
makes lengthy allegations about a state court in Las Vegas, Nevada. (Id., ¶13.)
However, all those courts—and many others in CNS’s self-selected summary of
court access policies (id., Ex. 1)—are electronic filing courts. Indeed, all federal
courts throughout the country employ the PACER system for court records
management (id., ¶ 11), which mandates electronic filing of substantially all
documents filed with the court. And the Las Vegas court also recently
implemented a mandatory e-filing protocol. (Id., ¶ 13.) The result is that clerk’s
offices in these courts are not burdened by the substantial additional administrative
task imposed by the need to process by hand every document filed with the court.
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CNS does not allege—and cannot allege—that Ventura Superior Court is an
electronic filing court. Rather, the clerk’s office staff at Ventura Superior Court
must process by hand each and every document filed with the court. This
distinction, which CNS ignores, is critical. It is not surprising that many e-filing
courts can provide “same-day access”; they are not burdened with the additional
administrative tasks that non-e-filing courts, like Ventura Superior Court, must
perform. But the fact that e-filing courts are not burdened with those tasks does not
somehow compel imposition of an even greater burden on non-e-filing courts.
3.
10
CNS Has Not Attempted To Seek Appropriate Relief In State
Court.
11
As explained above, California law already requires courts to provide
12
“reasonable access” to court documents once they are filed. See Cal. Gov’t Code §
13
68150(l) & 68151. CNS curiously avoids any reference to this governing statute.
14
Instead, CNS argues that Ventura Superior Court’s failure to provide “same-day
15
access” violates California Rule of Court 2.550 as an “exercise of unguided
16
discretion to effectively seal a court record,” the authority for which “lies only in a
17
judge of the court.” (Id., ¶ 33.) Even if this claim were well taken (it is not, see
18
infra Section III), CNS has not sought relief from this alleged violation from “a
19
judge of the court.” It has not sought any relief from the state courts under the
20
governing state law.
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ARGUMENT
I.
THIS COURT SHOULD ABSTAIN FROM HEARING THIS CASE.
Article III of the Constitution limits federal court review to justiciable “cases
and controversies.” See generally U.S. Const., Art. III, §§ 1, 2. As the Supreme
Court recognized in Los Angeles v. Lyons, 461 U.S. 95, 112, 103 S. Ct. 1660,75 L.
Ed. 2d 675 (1983), “[a] federal court . . . is not the proper forum to press” general
complaints about the way in which government goes about its business. See also
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Missouri v. Jenkins, 515 U.S. 70, 112-113, 115 S. Ct. 2038, 132 L. Ed. 2d 63
(1995) (O’Connor, J., concurring) (“Article III courts are constrained by the
inherent constitutional limitations on their powers. Unlike Congress, which enjoys
discretion in determining whether and what legislation is needed to secure the
guarantees of the Fourteenth Amendment, federal courts have no comparable
license and must always observe their limited judicial role.”) (internal citations and
quotations omitted).
Whether a case is justiciable is governed, in part, by important separation of
powers principles. See Flast v. Cohen, 392 U.S. 83, 97, 88 S. Ct. 1942, 20 L. Ed.
2d 947 (1968). Thus, the Supreme Court has developed several related abstention
doctrines grounded in principles of comity and federalism to ensure that federal
courts do not improvidently resolve disputes and award relief that will intrude upon
the prerogatives of states to structure and fund their own governmental institutions.
See Rizzo v. Goode, 423 U.S. 362, 378-80, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976)
(“When a plaintiff seeks to enjoin the activity of a government agency, even within
a unitary court system, his case must contend with the well-established rule that the
Government has traditionally been granted the widest latitude in the dispatch of its
own internal affairs”) (internal quotations and citations omitted).
A.
This Court Should Equitably Abstain From Hearing This Matter
Pursuant To O’Shea v. Littleton.
The Supreme Court first articulated the doctrine of equitable abstention in
O’Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974). This
doctrine counsels federal courts to decline to exercise their equitable powers in
cases seeking to reform state institutions, because such suits offend traditional
notions of federalism by calling for “restructuring . . . state government
institutions” and “dictating state or local budget priorities.” O’Shea, 414 U.S. at
500; see also Horne v. Flores, 129 S. Ct. 2579, 2593, 174 L. Ed. 2d 406 , 557 U.S.
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__ (2009) (“Federalism concerns are heightened when, as in these cases, a federal
decree has the effect of dictating state and local budget priorities. States and local
governments have limited funds. When a federal court orders that money be
appropriated for one program, the effect is often to take funds away from other
important programs.”); Los Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 697 (9th Cir.
1992) (“We should be very reluctant to grant relief that would entail heavy federal
interference in such sensitive state activities as administration of the judicial
system”); Ad Hoc Comm. on Judicial Admin. v. Massachusetts, 488 F.2d 1241,
1245-46 (1st Cir. 1973) (“In this nation, the financing and, to an important extent,
the organization of the judicial branches, federal and state, have been left to the
people, through their legislature. . . . [I]t would be both unprecedented and
unseemly for a federal judge to attempt a reordering of state priorities”).
Last month, the Ninth Circuit recognized that “[w]hen the state agency in
question is a state court . . . the equitable restraint considerations [of O’Shea]
appear to be nearly absolute.” E.T. v. Cantil-Sakauye, No. 10-15248, slip op.
17457, 17464 (9th Cir. Sept. 13, 2011) (quoting Parker v. Turner, 626 F.2d 1, 7
(6th Cir. 1980)). In that case, the Ninth Circuit affirmed a district court’s decision
to abstain from entertaining a suit seeking a declaration that the caseloads in
dependency courts in the Superior Court of California, County of Sacramento, were
unconstitutionally excessive.2 Specifically, the court reasoned the lower court had
properly “[h]eed[ed] the teachings of O’Shea and cases since” by concluding that
“‘[P]laintiffs’ challenges to the juvenile dependency court system necessarily
require the court to intrude upon the state’s administration of its government, and
more specifically, its court system.’” Id., at 17463 (quoting E.T. v. George, 681 F.
Supp. 2d 1151, 1164 (E.D. Cal. 2010)). The court further rejected the plaintiffs’
2
Although a petition for rehearing and rehearing en banc is pending in E.T.
before the Ninth Circuit, the original three-judge panel decision remains valid law
unless and until the court grants the petition. See 9thMemo Supporting Motion to Dismiss and
Cir. Gen. Order 5.5(d).
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invitation to consider only a request for declaratory relief (not injunctive relief):
“For ‘even the limited decree[]’ sought here ‘would inevitably set up the precise
basis for future intervention condemned in O’Shea.’” Id. at 17465 (quoting Luckey
v. Miller, 976 F.2d 673, 679 (11th Cir. 1992)); see also id. (“[W]ere we to declare
the current Dependency Court attorney caseloads unconstitutional or unlawful, the
Defendants’ compliance with that remedy and its effect in individual cases could be
subject to further challenges in federal district court.”).
1.
CNS’s Complaint Seeks The Exact Sort of Intervention With
State Judicial Administration That O’Shea Condemns.
10
The same equitable restraint considerations that underlie E.T., Ad Hoc
11
Committee and other cases compel abstention here. CNS seeks a mandatory
12
injunction that, by its very nature, would require this Court to “inquire into the
13
administration of [California’s judicial] system, its utilization of personnel,” and the
14
advisability of requiring it to adopt a “same-day access” policy in light of critical
15
and competing statewide budgetary concerns. Ad Hoc Comm., 488 F.2d at 1245;
16
see also O’Shea, 414 U.S. at 502 (criticizing the court of appeal’s proposed
17
“periodic reporting system” as “a form of monitoring of the operation of state court
18
functions that is antipathetic to established principles of comity”).
19
Most significantly, beyond an injunction requiring this Court’s continuing
20
oversight to ensure the Ventura Superior Court’s general compliance, CNS seeks an
21
injunction that necessarily would put the “federal district court in the role of
22
receiver for a state judicial branch” insofar as CNS seeks “same-day access” to new
23
civil unlimited jurisdiction complaints “except as deemed permissible following the
24
appropriate case-by-case adjudication.” (Compl., Prayer, ¶ 1 (emphasis added);
25
see also Compl., ¶ 34.) Thus, CNS acknowledges that “same-day access” might
26
not be possible in all circumstances (even if required, which it is not), and wants
27
this Court to resolve those situations.
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As Ad Hoc Committee warned, “[w]hile the state judiciary might appreciate
the additional resources, it would scarcely welcome the intermeddling with its
administration which might follow.” Ad Hoc Comm., 488 F.2d at 1246. This Court
should decline CNS’s invitation to intermeddle with the California court system for
this reason. See also Kaufman v. Kaye, 466 F.3d 83, 87 (2d Cir. 2006) (“[W]e
cannot resolve the issues raised here as to present assignment procedures without
committing to resolving the same issues as to the remedy chosen by the state and as
to the subsequent case-by-case implementation of the assignment procedures in the
Second Department. This is exactly what O’Shea forbids.”).
2.
CNS’s Current Legislative Attempts For Relief Underscore
The Wisdom In This Court’s Abstention.
12
Case law consistently recognizes that decisions concerning budgets, staffing,
13
and procedural matters of local agencies are best left to resolution by a “legislative
14
or executive, rather than a judicial, power.” Jenkins, 515 U.S. at 133; see also Ad
15
Hoc Comm., 488 F.2d at 1245 (“In this nation, the financing and, to an important
16
extent, the organization of the judicial branches, federal and state, have been left to
17
the people, through their legislature.”). And CNS knows this better than anyone.
18
Before filing its lawsuit here, CNS sought from the California legislature the very
19
same relief—albeit on a statewide basis—that it seeks here. (RJN, Ex. A.)
20
CNS’s legislative effort supports abstention in at least three respects. First,
21
SB 326 is still pending with the legislature, which will reconvene in January. Thus,
22
there is a risk that this Court’s jurisdiction over the case could be mooted by
23
intervening events. Even worse, this Court could render a decision inconsistent
24
with the state’s legislative directive, causing confusion and uncertainty and wasting
25
precious resources.
26
Second, SB 326 demonstrates that CNS’s complaints about access are not
27
limited to one theoretically anomalous court. CNS actually contends that “timely”
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(Id., Ex. B.) Thus, if the Court were to entertain this action, it is likely to become
embroiled not just in the administration of the Ventura Superior Court, but in the
administration of the entire state judicial branch—an exponentially greater level of
intermeddling that O’Shea intended to prevent.
Third, SB 326 demonstrates the arbitrariness of CNS’s position. Prior to
2010, CNS did not visit Ventura Superior Court every day (and even then
apparently reported only on new filings from only one of Ventura’s three
courthouses), and therefore had no need for “same-day access.” (Compl., ¶¶ 2225.) In late 2010, it changed its business model to increase coverage of that court
and began sending a reporter daily. (Id., ¶ 25.) Now, through its Complaint, CNS
seeks “same-day access” to newly filed unlimited civil complaints filed in Ventura
Superior Court. Through SB 326, however, CNS seeks “same-day access” to
newly filed unlimited civil complaints filed throughout the state. And, as CNS
determines (in its sole discretion) that other types of filings are “newsworthy” (id.,
¶ 15), it may seek “same-day access” to those. Indeed, at some point, CNS may
contend that “same-day access” is no longer sufficient; it must be “within the hour”
access. But this Court has no obligation, much less prudential need, to conform the
law to CNS’s ever-changing business model. If anything, the law should require
CNS to change its model to adapt to the reasonable access that it already is
provided.
In short, “the proposed cure” that CNS seeks would be worse “than the
disease.” Ad Hoc Comm., 488 F.2d at 1246. This Court should exercise its
discretion to equitably abstain from hearing this action accordingly.
B.
This Court Should Abstain From Hearing This Matter Pursuant
To Railroad Comm’n of Texas v. Pullman Co.
Abstention doctrines do more than prevent federal courts from intruding
upon the prerogatives of states to structure and fund their own governmental
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institutions. Abstention doctrines also honor comity and federalism by avoiding
“unnecessary friction in federal-state relations, interference with important state
functions, tentative decisions on questions of state law, and premature
constitutional adjudication.” Pearl Investment Co. v. City and County of San
Francisco, 774 F.2d 1460, 1462 (9th Cir. 1985), cert. denied, 476 U.S. 1170 (1986)
(internal quotations omitted). Hence, under a separate abstention doctrine first
announced in Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 500-01, 61
S. Ct. 643, 85 L. Ed. 971 (1941), “federal courts should abstain from decision when
difficult and unsettled questions of state law must be resolved before a substantial
federal constitutional question can be decided.” Hawaii Hous. Auth. v. Midkiff, 467
U.S. 229, 236, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984).
In the Ninth Circuit, federal courts have the discretion to abstain under
Pullman when: “(1) The complaint touches a sensitive area of social policy upon
which the federal courts ought not to enter unless no alternative to its adjudication
is open[;] (2) Such constitutional adjudication plainly can be avoided if a definitive
ruling on the state issue would terminate the controversy[; and] (3) The possibly
determinative issue of state law is doubtful.” Smelt v. County of Orange, 447 F.3d
673, 679 (9th Cir.), cert. denied, 549 U.S. 959 (2006); see generally Canton v.
Spokane Sch. Dist. # 81, 498 F.2d 840 (9th Cir. 1974).
Pullman and its progeny create a narrow exception to a federal court’s duty
to adjudicate claims properly before it. E.g., County of Allegheny v. Frank
Mashuda Co., 360 U.S. 185, 188, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1958).
Nonetheless, Pullman abstention warrants careful consideration because all three of
the factors enunciated by the Ninth Circuit are present in this case. To start, as
explained above, the Complaint here asks this Court to become the overseer of the
administrative operations of the Ventura Superior Court, and to decide, apparently
on a case-by-case basis, whether access to newly filed unlimited civil complaints
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must be granted on a “same-day basis.” Pullman abstention is appropriate in this
circumstance because “federal courts owe deference to their state counterparts in
situations where public perceptions of the integrity of the state judicial system are
affected.” Hughes v. Lipscher, 906 F.2d 961, 967 (3d Cir. 1990); see also
Almodovar v. Reiner, 832 F.2d 1138, 1140 (9th Cir. 1987) (“the ‘sensitive social
policy’ prong . . . recognizes that abstention protects state sovereignty over matters
of local concern, out of considerations of federalism, and out of scrupulous regard
for the rightful independence of state governments”).
As for the second and third Pullman factors, resolution of at least two
unsettled questions of state law could obviate the need for this action in its entirety.
As noted above, Government Code section 68150(l) already provides that court
records of all types “shall be made reasonably accessible to all members of the
public for viewing and duplication . . . . .” Cal. Gov’t Code § 8150(l) (emphasis
added). However, as CNS and other sponsors of SB 326 have already
acknowledged, the term, “‘reasonable access’ is not defined under existing law.”
(RJN, Ex. B at 2.)
Much the same can also be said of CNS’s third claim for relief for violation
of California Rule of Court 2.550. This Rule of Court provides that “court records
are presumed to be open,” and permits trial courts to seal a court record only when
“(1) There exists an overriding interest that overcomes the right of public access to
the record; (2) The overriding interest supports sealing the record; (3) A substantial
probability exists that the overriding interest will be prejudiced if the record is not
sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive
means exist to achieve the overriding interest.” Cal. R. Ct. 2.550(c) & (d); see also
Compl., ¶¶ 41-42 (quoting these provisions). It certainly is an open and unsettled
question whether these Rules of Court somehow recognize an enforceable right to
“same-day access” to newly filed unlimited civil complaints.
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As explained in greater detail below (see infra Section III), the Eleventh
Amendment precludes a federal court from ruling on CNS’s state-law claim. In any
event, a state court ruling requiring “same-day access” to newly filed unlimited
civil complaints pursuant to Government Code section 68150(l) or Rule of Court
2.550 would, of necessity, obviate the need for this Court to rule on the First
Amendment issues CNS presses here. Pullman abstention is warranted for this
reason. See C-Y Dev. Co. v. Redlands, 703 F.2d 375, 377-78 (9th Cir. 1983)
(“[T]he assumption which justifies abstention is that a federal court’s erroneous
determination of a state law issue may result in premature or unnecessary
constitutional adjudication, and unwarranted interference with state programs and
statutes. A state law question that has the potential of at least altering the nature of
the federal constitutional questions is thus an essential element of Pullman
abstention.”) (citation omitted); Canton, 498 F.2d at 845 (“With regard to elements
(2) and (3) [of the Pullman abstention test], 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.”).
II.
CNS’S FIRST AND SECOND CLAIMS FOR RELIEF FAIL TO
STATE A CLAIM FOR A CONSTITUTIONAL OR FEDERAL
COMMON LAW “RIGHT” OF SAME-DAY ACCESS TO NEWLY
FILED UNLIMITED CIVIL COMPLAINTS.
Even if O’Shea and Pullman abstention doctrines could not be invoked here,
CNS’s first and second claims for relief should be dismissed for failure to state a
claim as a matter of law. As noted above, CNS alleges that it has both a
constitutional and common-law right of access to court records, and that such
access must be timely. (Compl., ¶¶ 32, 37.) Ventura Superior Court does not
dispute either proposition; as discussed above, even the California Government
Code mandates “reasonable access” to all court records. Cal. Gov’t Code
§ 68150(l). But CNS then takes the unsupportable leap that timely access to court
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records equates to “same-day access”. (Compl., ¶¶ 32, 37.) No such right exists
under the law.
A.
The First Claim For Relief Should Be Dismissed Because The First
Amendment Does Not Guarantee Same-Day Access.
1.
6
7
First Amendment Public Rights Of Access To Court
Records Are Governed By “Experience And Logic.”
In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 579-81, 100 S. Ct.
8
2814, 65 L. Ed. 2d 973 (1980), the Supreme Court held for the first time that the
9
First Amendment gave the press and public an affirmative qualified right of access
10
to criminal court proceedings. The Court identified two related criteria for
11
evaluating First Amendment right of access, id. at 588-89 (Brennan, Marshall, JJ,
12
concurring), which it later termed “considerations of experience and logic:” (1)
13
whether the place and process have historically been open to the press and general
14
public (i.e., “experience”); and (2) whether public access plays a significant
15
positive role in the functioning of the particular process in question (i.e., “logic”).
16
Press-Enterprise Co. v. Superior Court, 478 US 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d
17
1 (1986) (Press-Enterprise II). Both criteria must be satisfied to establish a
18
qualified right to access. CNS cannot satisfy either.
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2.
Historic “Experience” Does Not Recognize A Right To
Same-Day Access To Court Records.
a. There Is No Historic Right To Same-Day Access As A
Matter Of Law.
Since Richmond, the Supreme Court has revisited the First Amendment right
of access only in the context of criminal proceedings. See Globe Newspaper Co. v.
Superior Court, 457 U.S. 596, 606-11, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982)
(closing proceedings during testimony of underage rape victim unconstitutional);
Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508-13, 104 S. Ct. 819, 78
L. Ed. 2d 629 (1984) (closing voir dire in criminal case unconstitutional in light of
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importance of that process to the criminal justice system and the long history of
public voir dire); Press-Enterprise II, 478 U.S. at 10-15 (qualified First
Amendment right of access to criminal proceedings applies to preliminary hearings
as conducted in California); cf. Gannett Co., Inc. v. DePasquale, 443 U.S. 368,
391-92, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979) (assuming, without deciding, a
First Amendment right of access to attend criminal trial and holding First
Amendment was not violated by orders excluding members of public and press
from pretrial suppression hearing and temporarily denying access to transcript of
suppression hearing).
Although several lower federal and state courts have extended the public’s
First Amendment right of access to civil proceedings and related court records,
none has held that (or even considered whether) access to civil case filings must
occur the same day they are filed or otherwise submitted to a court. See, e.g., New
York Civil Liberties Union v. New York City Transit Auth., 652 F.3d 247, 250-51
(2d Cir. 2011) (permanently enjoining on First Amendment grounds City Transit
Authority’s policy precluding public access to administrative adjudicatory
proceedings); Rushford v. New Yorker Mag., 846 F.2d 249, 253 (4th Cir. 1988)
(applying “the more rigorous First Amendment standard to documents filed in
connection with a summary judgment motion in a civil case” and ordering sealed
documents unsealed, save those subject to a protective order); NBC Subsidiary
(KNBC-TV), Inc., 20 Cal. 4th at 1181-82 (concluding trial court’s order excluding
public and press from high profile civil trial violated First Amendment right of
access to “ordinary civil trials and proceedings”); In re Marriage of Burkle, 135
Cal. App. 4th 1045, 1052-53, 1060-62, 37 Cal. Rptr. 3d 805 (2006) (holding
facially invalid statute requiring sealing of pleadings in divorce proceedings upon
party request; under First Amendment strict scrutiny statute was not narrowly
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tailored to serve overriding privacy interests in light of presumption of openness to
civil court proceedings).
b. The Courtesies Extended To CNS By Some Courts Does
Not Otherwise Establish An Historic Right To SameDay Access.
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CNS alleges a “tradition” of “same-day access” to new unlimited civil
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complaints based on its experience with other court procedures. (Compl., ¶¶ 11-14
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& Ex. 1.) Closer scrutiny of CNS’s claims, however, shows that they establish no
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such right.
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CNS identifies courts in only 23 of the 50 states where it is allegedly
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provided “same-day access” to new civil complaints. (Id.) Moreover, many of
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those courts employ e-filing systems that dramatically reduce the processing
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burdens on clerk office staff, which contrasts sharply with Ventura Superior Court.
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And within California, CNS alleges the courtesy of “same-day access” at only
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seven of approximately 532 court locations within California’s 58 counties. (Id. at
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23, 25, 27, 29-31.) This deficient sampling does not constitute a “tradition” of
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anything, much less warrant imposition of a right to “same-day access.”
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3.
“Logic” Does Not Recognize A Right To Same-Day Access,
Either.
The “logic” prong of the Supreme Court’s two-part test inquires whether
public access plays a significant positive role in the functioning of the particular
process in question. Press-Enterprise II, 478 US at 8. CNS suggests that local
court considerations—including budgets constraints, court caseloads, personnel
capacities, and priorities of other court business—must bow to the
“newsworthiness” of newly filed unlimited civil complaints in the short window
between when they are received by the court for processing and then filed. (See
Compl., ¶ 10.) But the lack of contemporaneous news reporting does not itself
diminish the significance of the news reports, even in the criminal context:
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We recognize the worth of timely news reported on the front page
and, by contrast, the diminished value of noteworthy, but untimely,
news reported on an inside page. Implicit in that assessment,
however, is the fair assumption that significant news will receive the
amount of publicity it warrants. The value served by the first
amendment right of access is in its guarantee of a public watch to
guard against arbitrary, overreaching, or even corrupt action by
participants in judicial proceedings. Any serious indication of such an
impropriety, would, we believe, receive significant exposure in the
media, even when such news is not reported contemporaneously with
the suspect event.
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United States v. Edwards, 823 F.2d 111, 119 (5th Cir. 1987) (emphasis added).
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Thus, even where the Supreme Court historically has been the most protective,
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there has been no recognized right of “same-day access” to such records.
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The public’s interest in being on “watch” at the case-initiation stage of a civil
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case is far less pronounced, if it exists at all, than in pending criminal proceedings
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where it has been held there is no right to contemporaneous access to judicial
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records. See id. at 118 (concluding that “the first amendment guarantees a limited
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right of access to the record of closed proceedings concerning potential jury
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misconduct and raises a presumption that the transcript of such proceedings will be
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released within a reasonable time”) (emphasis added).
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Moreover, courts have long recognized that alleged delays in case
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adjudication—not unlike delays in judicial administration generally—are an “old
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story and a traditional source of exasperation to litigants.” Lucien v. Johnson, 61
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F.3d 573, 574 (7th Cir. 1995) (noting that “when the relief sought is an order to the
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delaying agency to hurry up, the seeker’s prospects are, as a practical matter, very
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close to nil”). Nevertheless, outside the criminal arena (which constitutionally
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mandates the right to a speedy trial), it is “exceedingly difficult to obtain a remedy
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against delay by an adjudicative body” because “[h]arm from delay is difficult to
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prove, and judges are reluctant to order other judges (or their administrative
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counterparts) to hurry up.” Id.; see, e.g., Cleveland Bd. of Educ. v. Loudermill, 470
27
U.S. 532, 547, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985); Los Angeles Cnty. Bar
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making implicit in hasty or forced action, we are unwilling to suggest that the
Constitution may dictate or even countenance a time limit on the consideration a
judge may give to a civil case.”).
Here, there is no harm from the reasonable access CNS already receives at
Ventura Superior Court. CNS has failed to identify a single subscriber that has
lamented CNS’s purportedly delayed reporting. CNS has failed to identify one
instance where any alleged delay in processing a new complaint meant that CNS
lost out on an opportunity to timely report on an event. In fact, exactly the opposite
is true. CNS touts itself as such a trusted source for timely reporting on key
litigation events that numerous other news sources use CNS’s reporting as a jumpoff for their own reporting, which often occurs many days after CNS’s reporting.
(See Compl., ¶ 17.) Thus, there is no “logic”-based reason why a same-day right of
access should be recognized, much less compelled, here. The first claim for relief
should be dismissed accordingly.
B.
The Second Claim For Relief Should Be Dismissed Because
Federal Common Law Does Not Guarantee Same-Day Access.
Although there exists a general common law right to inspect and access
judicial records, that right is likewise qualified and affords even less substantive
protection to the interests of the press and public than does the First Amendment.
Nixon v. Warner Communications, Inc., 435 U.S. at 598; Rushford, 846 F.2d at 253.
Moreover, CNS’s reliance on this general common-law right of access is
insufficient to state a claim under 42 U.S.C. § 1983 because, despite CNS’s
suggestion to the contrary, Ventura Superior Court does not have a “blanket rule”
preventing CNS from accessing and inspecting all civil unlimited jurisdiction
complaints. (Compl., ¶ 38.) Indeed, that very notion is belied by CNS’s allegations
elsewhere that detail (albeit with questionable accuracy) the number of complaints
to which they have “same-day access.” (Id., ¶ 29.)
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As with its First Amendment claim, though, CNS fails to identify any
authority that would support a common-law right of access claim for failure to
provide “same-day access” to civil complaints. The second claim for relief should
be dismissed accordingly.
III.
THE ELEVENTH AMENDMENT BARS CNS’S THIRD CLAIM FOR
RELIEF FOR VIOLATION OF RULE OF COURT 2.550.
The Eleventh Amendment to the United States Constitution operates as a
jurisdictional limit on the Court’s power, and bars suits that seek either damages or
injunctive relief against a State, an arm of the State, as well as the instrumentalities
and agencies of a State. U.S. Const., Amend XI; Durning v. Citibank, N.A., 950
F.2d 1422, 1422-23 (9th Cir. 1991); Cal. Mother Infant Program v. Cal. Dep’t of
Corrs., 41 F. Supp. 2d 1123, 1125 (S.D. Cal. 1999).
Lawsuits against state officials in their official capacity are nothing more
than attempts to sue the State, and thus also are barred. Kentucky v. Graham, 473
U.S. 159, 164-66, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1988) (holding
that “‘arms of the State’ for Eleventh Amendment purposes” are not liable under §
1983); Cent. Reserve Life of N. Am. Ins. Co. v. Struve, 852 F.2d 1158, 1160 (9th
Cir. 1988) (affirming district court’s conclusion that Eleventh Amendment
precluded prosecution of state claims against a state official). Settled law holds that
state courts are arms of the state for Eleventh Amendment purposes. Greater L.A.
Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987). And the
Ninth Circuit has specifically held that lawsuits against court employees in their
representative capacities are subject to the Eleventh Amendment: “Plaintiff cannot
state a claim against the Sacramento County Superior Court (or its employees),
because such suits are barred by the Eleventh Amendment.” Simmons v.
Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); see also
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Cal. Gov’t Code § 811.9 (“[C]ourt executive officers of the superior courts are state
officers . . . .”).
Here, CNS alleges a claim for violation of California Rule of Court 2.550
against Mr. Planet, sued in his official capacity as Executive Officer and Clerk of
the Superior Court of California, County of Ventura. That claim is barred by the
Eleventh Amendment. Pennhurst State School & Hosp. v. Helderman, 465 U.S.
89, 106, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) (“[I]t is difficult to think of a
greater intrusion on state sovereignty than when a federal court instructs state
officials on how to conform their conduct to state law. Such a result conflicts
directly with the principles of federalism that underlie the Eleventh Amendment.”).
CNS’s third claim for relief should be dismissed accordingly.
CONCLUSION
For all these reasons, Ventura Superior Court’s motion to abstain and dismiss
should be granted, and this action should be dismissed in its entirety.
Dated: October 20, 2011
JONES DAY
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By: /s/ Robert A. Naeve
Robert A. Naeve
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Attorneys for Defendant
MICHAEL PLANET, IN HIS OFFICIAL
CAPACITY AS COURT EXECUTIVE
OFFICER/CLERK OF THE VENTURA
COUNTY SUPERIOR COURT
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Respectfully submitted,
LAI-3151850
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