Courthouse News Service v. Michael Planet
Filing
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OPPOSITION to MOTION to Dismiss Case and Abstain #21 filed by Plaintiff Courthouse News Service. (Attachments: #1 Proposed Order)(Matteo-Boehm, Rachel)
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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
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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Courthouse News Service,
CASE NO. CV11-08083 R (MANx)
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Plaintiff,
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v.
Michael D. Planet, in his official
capacity as Court Executive
Officer/Clerk of the Ventura County
Superior Court.
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Defendant.
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PLAINTIFF COURTHOUSE NEWS
SERVICE’S OPPOSITION TO THE
MOTION TO DISMISS AND
ABSTAIN OF DEFENDANT
MICHAEL PLANET
Date:
Nov. 21, 2011
Time:
10:00 am
Courtroom: G-8 (2nd Floor)
Judge: The Hon. Manuel L. Real
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
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TABLE OF CONTENTS
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Page
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INTRODUCTION ......................................................................................................... 1
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I.
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DEFENDANT’S MOTION MISSTATES THE NATURE OF THE
RELIEF COURTHOUSE NEWS SEEKS, AND CERTAIN
CORRECTIONS TO DEFENDANT’S ASSERTIONS ARE ALSO IN
ORDER .................................................................................................................. 2
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A. Defendant’s Concession That There Is A First Amendment Right
Of Access To Civil Court Records Means Access To Those Records
Cannot Be Denied Unless Strict Requirements Are Met, And Those
Requirements Trump State Statutes That Are Less Protective Of
Access ............................................................................................................. 2
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B.
The Failure Of SB 326 To Pass Earlier This Year Demonstrates
The Need For This Court To Act ................................................................... 3
C.
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Defendant’s Description Of The Nature Of Courthouse News’ Claims
And The Relief Sought Is Inaccurate; Courthouse News Seeks Only An
Order That Defendant Stop Obstructing Same-Day Access .......................... 5
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II.
THIS COURT SHOULD NOT ABSTAIN FROM DECIDING THE
IMPORTANT ISSUES OF FEDERAL LAW RAISED IN THE
COMPLAINT ........................................................................................................ 6
A. Abstention Is Strongly Disfavored; A Federal Court Should Decline
To Exercise Its Federal Question Jurisdiction In Only The Rarest Of
Situations ........................................................................................................ 6
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B.
The O’Shea Abstention Doctrine Does Not Apply Because The Relief
Courthouse News Seeks Will Not Be Highly Intrusive On The State
Court, Unworkable Or Require This Court To Audit The State Court.......... 7
C.
Pullman Abstention is Not Appropriate Because This Court Need Not
Decide A Single Issue of State Law............................................................... 14
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III. DEFENDANT’S ATTEMPT TO AVOID ADJUDICATION OF HIS
DELAYS IN ACCESS UNDER THE FIRST AMENDMENT AND
COMMON LAW HAS NO MERIT, AND HIS MOTION TO DISMISS
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COURTHOUSE NEWS’ FIRST AND SECOND CLAIMS FOR RELIEF
SHOULD BE DENIED.......................................................................................... 16
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A. Defendant’s Motion Should Be Denied Because The First And Second
Claims For Relief Are Grounded Not Just In The Denial Of Same-Day
Access In Particular, But Also The Overall Delays In General..................... 16
B.
Whether A Denial Of Same Day Access Violates The First Amendment
And Common Law Rights Of Access Is A Factual Inquiry To Be
Determined On A Case-By-Case Basis, And Is Not An Appropriate
Basis For Dismissal Under FRCP 12(b)(6).................................................... 18
C.
Defendant’s Other Arguments In Support Of His Motion To Dismiss
Lack Merit ...................................................................................................... 19
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IV. GIVEN DEFENDANT’S ASSERTION OF ELEVENTH AMENDMENT
IMMUNITY, COURTHOUSE NEWS CONSENTS TO THE DISMISSAL
OF ITS STATE LAW CLAIM, AND THAT CLAIM ONLY.............................. 23
CONCLUSION.............................................................................................................. 23
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TABLE OF AUTHORITIES
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FEDERAL CASES
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Page(s)
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31 Foster Children v. Bush,
329 F.3d 1255 (11th Cir. 2003) ............................................................................8
Ad Hoc. Commission on Judicial Admin v. Massachusetts,
488 F.2d 1241 (1st Cir. 1973).............................................................................11
Associated Press v. District Court,
705 F.2d 1143 (9th Cir. 1983) ........................................................................3, 19
Benavidez v. Eu,
34 F.3d 825 (9th Cir. 1994) ..............................................................................8, 9
Clement v. California Department of Corrections,
364 F.3d 1148 (9th Cir. 2004) ..............................................................................9
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14
Colorado River Water Conservation District v. United States,
424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976) ......................................7
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Connecticut Magazine v. Moraghan,
676 F. Supp. 38 (D. Conn. 1987).......................................................................14
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County of Allegheny v. Frank Mashuda,
360 U.S. 185, 79 S. Ct. 1060, 3 L. Ed. 2d 1163 (1959) ......................................7
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Courthouse News Service v. Jackson,
2009 U.S. Dist. LEXIS 62300,
38 Media L. Rep. 1890 (S.D. Tex. 2009) ............................................5, 6, 19, 22
Courthouse News Service v. Jackson,
2010 U.S. Dist. LEXIS 74571,
38 Media L. Rep. 1894 (S.D. Tex. 2010) ............................................5, 6, 19, 22
Doe v. United States Department of Justice,
753 F.2d 1092 (D.C. Cir. 1985).........................................................................17
In re Eastman Kodak Co.,
2010 WL. 2490982 (S.D.N.Y. 2010).................................................................23
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E.T. v. Cantil-Sakauye,
___ F.3d ___, No. 10-15248, slip op. 17457 (9th Cir., Sept. 13, 2011).......10, 11
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3
FOCUS v. Allegheny Court of Common Pleas,
75 F.3d 834 (3rd Cir. 1996) ................................................................................14
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5
Family Division Trial Lawyers of the Superior Court-D.C. v. Moultrie,
725 F.2d 695 (D.C. Cir. 1984)...........................................................................10
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Gardner v. Luckey,
500 F.2d 712 (5th Cir. 1974) ..............................................................................10
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Gerstein v. Pugh,
420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) ..........................................8
Gilbertson v. Albright,
381 F.3d 965, 968 (9th Cir. 2004) (en banc) ........................................................8
Globe Newspaper Co. v. Pokaski,
868 F.2d 497 (1st Cir. 1989)...............................................................................19
Globe Newspaper Co. v. Superior Court,
457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) ..............................3, 13
Green v. City of Tucscon,
255 F.3d 1086 (9th Cir. 2001) ..............................................................................8
Joseph A. v. Ingram,
275 F.3d 1253 (10th Cir. 2002) ............................................................................8
Kamakana v. City & County of Honolulu,
447 F.3d 1172 (9th Cir. 2006) ............................................................................18
Kaufman v. Kaye,
466 F.3d 83 (2d Cir. 2006) ................................................................................12
Lake v. Speziale,
580 F. Supp. 1318 (D. Conn. 1984)...................................................................10
Los Angeles County Bar Association v. Eu,
979 F.2d 697 (9th Cir. 1992) ..............................................................................11
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Luckey v. Miller,
976 F.2d 673 (11th Cir. 1992) ............................................................................10
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Mason v. County of Cook,
488 F. Supp. 2d 761 (N.D. Ill. 2007).................................................................10
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Massey v. Banning Unified School District,
256 F. Supp. 2d 1090 (C.D. Cal. 2003) .............................................................17
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Middlesex County Ethics Commission v. Garden State Bar Association,
457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982) ....................................8
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Miofsky v. Superior Court,
703 F.2d 332 (9th Cir. 1983) ................................................................................7
Navarro v. Block,
250 F.3d 729 (9th Cir. 2001) ..............................................................................17
New Orleans Public Service, Inc. v. Council of City of New Orleans,
491 U.S. 350, 109 S. Ct. 2506, 105 L. Ed. 2d 298 (1989) ..................................7
Newcal Industrial, Inc. v. Ikon Office Solution,
513 F.3d 1038 (9th Cir. 2008) ..............................................................................4
Norwalk Core v. Norwalk Redevelopment Agency,
395 F.2d 920 (2d Cir. 1968) ..............................................................................17
In re NVIDIA, ,
2008 WL. 1859067 (N.D. Cal. 2008) ................................................................22
O’Shea v. Littleton,
414 U.S. 488, 94 S. Ct. 669 38, L. Ed. 2d 674 (1974) .. 6, 7, 8, 9, 10, 11, 12, 13
Papasan v. Allen,
478 U.S. 265, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986) ..................................23
Parker v. Turner,
626 F.2d 1 (6th Cir. 1980) ..................................................................................10
Phoenix Newspapers, Inc. v. United States District Court,
156 F.3d 940 (9th Cir. 1998) ...............................................................................3
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Pompey v. Broward County,
95 F.3d 1543 (11th Cir. 1996) ............................................................................10
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Porter v. Jones,
319 F.3d 483 (9th Cir. 2003) ........................................................................15, 16
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Potrero Hills Landfill, Inc. v. County of Solano,
__ F.3d __, No. 10-15229 slip op. 17295 (9th Cir., Sept. 13, 2011)..............7, 15
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Press-Enterprise Co. v. Superior Court,
478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) ......................................3, 18
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Pulliam v. Allen,
466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 ..................................6, 7, 8, 10
Railroad Commission of Texas v. Pullman,
312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) ...............................14, 15, 16
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) ........................1, 15, 18
Ripplinger v. Collins,
868 F.2d 1043 (9th Cir. 1989) ............................................................................15
Rivera-Puig v. Garcia-Rosario,
983 F.2d 311 (1st Cir. 1992)...................................................................13, 14, 15
Shroyer v. New Cingular Wireless Services, Inc.,
622 F.3d 1035 (9th Cir. 2010) ............................................................................17
The Fort Wayne Journal-Gazette v. Baker,
788 F. Supp. 379 (N.D. Ind. 1992) ..............................................................13, 14
The Hartford Courant Co. v. Pellegrino,
380 F.3d 83 (2d Cir. 2004) ..............................................................13, 14, 15, 16
Times Mirror Co v. United States,
873 F.2d 1210 (9th Cir. 1989) ............................................................................18
United States v. Brooklier,
685 F.2d 1162 (9th Cir. 1982) ..............................................................................2
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United States v. Edwards,
672 F.2d 1289 (7th Cir. 1982) ............................................................................18
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United States v. Edwards,
823 F.2d 111 (5th Cir. 1987) ........................................................................21, 22
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Valley Broad. Co. v. United States District Court,
798 F.2d 1289 (9th Cir. 1986) ............................................................................18
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Wisconsin Department of Corrections v. Schacht,
524 U.S. 381, 118 S. Ct. 2047, 141 L. Ed. 2d 364 (1998) ................................23
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Wisconsin v. Constantineau,
400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971) ......................................14
Wolfson v. Brammer,
616 F.3d 1045 (9th Cir. 2010) ............................................................................15
Younger v. Harris,
401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) ................7, 8, 9, 12, 13, 14
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STATE CASES
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In re Estate of Hearst,
67 Cal. App. 3d 777, 136 Cal. Rptr. 821 (1977) ...............................................19
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NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
20 Cal. 4th 1178, 86 Cal. Rptr. 2d 778 (1999) .............................................15, 19
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FEDERAL STATUTES
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Federal Rule of Civil Procedure 12(b)(6) ................................................4, 17, 18, 22
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STATE STATUTES
Cal. Code Civ. Proc. § 124 ......................................................................................15
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Cal. Rule of Court 2.550 ..........................................................................................15
California Government Code § 68150.............................................................3, 5, 16
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California Penal Code § 868 ......................................................................................3
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INTRODUCTION
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The public’s right of timely access to court records is not simply a “courtesy”
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granted by the courts. It is a fundamental civil liberty that the courts cannot infringe
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upon without conducting a demanding constitutional analysis, even though court
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executives like Defendant may prefer to avoid it.
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Despite acknowledging that the public has First Amendment rights of access to
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the court records in his control, Defendant shows little respect for those rights, and
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seems affronted by a request that such access be timely. Moreover, Defendant is
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dismissive of the press’s role, recognized repeatedly by the Supreme Court, in
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obtaining access to the courts as the public’s surrogate. See Richmond Newspapers,
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Inc. v. Virginia, 448 U.S. 555, 573, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).
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In an effort to avoid having a federal court examine his practice of denying
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access to civil complaints until his staff – and his staff alone – exercising its unfettered
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discretion, determines when it will make those records available, Defendant
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mischaracterizes both the First Amendment rights at issue and the relief Courthouse
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News seeks to vindicate those rights. As the Supreme Court has repeatedly held,
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when a First Amendment right of access exists, blanket rules and policies restricting
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such access must give way to case-by-case determinations in order to ensure that
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access is restricted in only exceptional circumstances. The Complaint in this case
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seeks only injunctive and declaratory relief that would prevent Defendant from
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continuing his practice of restricting access to new complaints without complying
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with the procedural and substantive requirements the Supreme Court and the Ninth
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Circuit have set forth. Nor is there any reason for this Court to abstain from deciding
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these issues of federal constitutional law, leaving Courthouse News to enforce these
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rights in the very court that is denying them.
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With one exception, see infra, Defendant’s Motion to Dismiss and Abstain must
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thus be rejected. The Complaint clearly sets forth claims based on the denials of the
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rights of access for which this Court can, and should, grant relief.
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MPA IN SUPPT. OF MOTION FOR PRELIMINARY INJUNCTION
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I.
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DEFENDANT’S MOTION MISSTATES THE NATURE OF THE RELIEF
COURTHOUSE NEWS SEEKS, AND CERTAIN CORRECTIONS TO
DEFENDANT’S ASSERTIONS ARE ALSO IN ORDER
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As a preliminary matter, Defendant’s motion to dismiss and abstain is notable
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for the extent to which it misstates both the nature Courthouse News’ claims as well
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as the facts and the law relevant to those claims. Accordingly, before proceeding to
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address the merits of Defendant’s motion, certain preliminary observations and
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corrections are in order.
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A.
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Defendant’s Concession That There Is A First Amendment Right Of
Access To Civil Court Records Means Access To Those Records Cannot Be
Denied Unless Strict Requirements Are Met, And Those Requirements
Trump State Statutes That Are Less Protective Of Access
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Defendant concedes, as he must, that there is a First Amendment right of access
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to civil court records, and that such access must be timely. Def’s Memorandum, at 18
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(“CNS alleges that it has both a constitutional and common-law right of access to
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court records, and that such access must be timely. ... Ventura Superior Court does not
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dispute either proposition”). Nor does he appear to dispute that there is a First
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Amendment right of access to civil court complaints. However, he fails to appreciate
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two important features of the First Amendment access right.
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First, once the First Amendment right of access is found to attach to a record or
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a class of records, it can only be overcome on a case-by-case basis, by way of an
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adjudicative process performed by a judge where the party seeking to restrict access
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satisfies the stringent three-part test established by the Ninth Circuit. United States v.
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Brooklier, 685 F.2d 1162, 1168-69 (9th Cir. 1982). Under the test, the party seeking to
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restrict access (in this case, Defendant) must prove: (1) the existence of a right of
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comparable importance to the First Amendment that is threatened by public access to
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the court records; (2) a substantial probability of irreparable damage to the asserted
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right will result if access is not withheld; and (3) a substantial probability that
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alternatives to withholding access will not adequately protect the asserted right.
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Phoenix Newspapers, Inc. v. United States District Court, 156 F.3d 940, 949 (9th Cir.
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1998); Associated Press v. District Court, 705 F.2d 1143, 1145-46 (9th Cir. 1983).
Second, neither California Government Code § 68150 nor any of the Rules of
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Court Defendant relies on may trump the federal constitutional right of access. In its
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landmark 1986 decision in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14,
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106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (“Press-Enterprise II”), the U.S. Supreme
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Court found California Penal Code § 868 unconstitutional because the law permitted
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courts to close criminal preliminary hearings on a mere showing of a reasonable
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probability of harm rather than meeting the more demanding test mandated by the
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First Amendment. Similarly, in 1982, the high court held unconstitutional a
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Massachusetts state statute requiring trial courts to exclude the public from the
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courtroom during the testimony of a minor victim of a sex crime in all instances; such
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determinations, the high court said, would have to be made on a case-by-case basis in
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accordance with First Amendment standards. Globe Newspaper Co. v. Superior
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Court, 457 U.S. 596, 606-08, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982).
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As these and other cases make clear, neither Government Code § 68150 nor the
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Rules of Court on which Defendant relies can set lower standards for access than what
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is required by the First Amendment. Senate Bill 326 would have provided clear
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direction to trial courts to provide same day access, but it would not have allowed
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courts to provide fewer rights than those already guaranteed by the Constitution.
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Thus, neither existing state law nor SB 326 should deter this Court from making a
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determination about Courthouse News’ First Amendment rights.
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B.
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The Failure Of SB 326 To Pass Earlier This Year Demonstrates The Need
For This Court To Act
Because Defendant makes so much of Courthouse News’ support of SB 326,
and incorrectly attributes certain statements made in connection with that bill to
Courthouse News, a brief response is in order.
Traditionally, and as demonstrated by the examples set forth in paragraphs 103
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14 & Exhibit 1 of Courthouse News’ Complaint,1 courts have provided same-day
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access to new civil complaints after initial intake tasks, for example accepting the
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filing fee, assigning a case number, and/or noting the first-named plaintiffs and
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defendants on an intake log, but well before full processing. This enabled reporters
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who visit courts at the end of each court day to review the large majority of civil cases
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filed earlier that same day. Many courts in California and across the nation still
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provide the traditional same-day access in this manner, including this Court. See
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Complaint ¶¶ 10-14 & Exh. 1. As indicated in the bill text, however, the use of new
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electronic technologies for filing court actions and modernizing access to court
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records has, in some instances, resulted in delays in access to court documents.
Senate Bill 326 would have addressed these delays by directing the California
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Judicial Council, which governs California’s state courts, to adopt a Rule of Court
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requiring newly filed complaints to be made available for inspection at the courthouse
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no later than the end of each court day. However, as Defendant readily acknowledges,
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that bill did not make it out of committee this year, and it is strongly opposed by the
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California Judicial Council, Administrative Office of the Courts. Given this reality,
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and having tried and failed in its efforts to work cooperatively with Defendant and his
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staff to resolve the delays in access at Ventura Superior, Courthouse News’ only real
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avenue to resolving those delays was federal litigation. Thus, if anything, SB 326
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only serves to emphasize the need for this Court to exercise its jurisdiction over the
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current dispute.
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Nowhere in Defendant’s notice of motion or supporting memorandum does he
specify the Federal Rule of Civil Procedure or other statutory authority under which
he is bringing his motion. However, because Defendant states his motion to dismiss is
for “failure to state a claim,” Courthouse News assumes it is brought under FRCP
12(b)(6). As such, the Court must “accept as true all facts alleged in the complaint,
and drawing all reasonable inferences in favor of” the plaintiff. Newcal Indus., Inc. v.
Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008).
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One final point about SB 326 is also in order. On page 8 of his
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memorandum, Defendant asserts that in sponsoring the bill, Courthouse News
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“claimed that: (a) Government Code section 68150 already ‘provides the public
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with reasonable access to court records;’” and that “(b) the term ‘reasonable
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access is not defined ... .’” Def’s Memorandum, at 8; see also 17 (making similar
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assertions about what Courthouse News purportedly “acknowledged”).
This is flat-out wrong. Courthouse News never claimed that Government Code
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§ 68150 “already ‘provides the public with reasonable access to court records,’” nor
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has it ever “acknowledged” that “the term ‘reasonable access is not defined.’” As is
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clear from Defendant’s own Request for Judicial Notice, these “claims” were made
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not by Courthouse News but rather by the California Senate Judiciary Committee, the
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author of the Bill Analysis in question. Def’s RJN, Exh. B at B9.
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C.
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Defendant’s Description Of The Nature Of Courthouse News’ Claims And
The Relief Sought Is Inaccurate; Courthouse News Seeks Only An Order
That Defendant Stop Obstructing Same-Day Access
In an effort to support his abstention arguments, Defendant mischaracterizes the
nature of Courthouse News’ claims and the scope of relief it seeks, claiming that a
ruling favoring Courthouse News “would require this Court to ‘inquire into the
administration of [California’s judicial] system, its utilization of personnel,’ and the
advisability of requiring it to adopt a ‘same-day access’ policy in light of critical and
competing state budgetary concerns.” This is not correct. Nor is Courthouse News
asking Defendant to, as he puts it, “hurry up,” or otherwise resolve delays in judicial
administration. Def’s Memorandum, at 13, 22.
The relief Courthouse News is seeking is quite simple: prohibit Defendant from
obstructing timely access to the newly filed civil complaints at Ventura Superior –
documents that, because they are newly filed, are literally sitting right there in the
intake area. This is nothing more than the relief the United States District Court for
the Southern District of Texas granted in a recent case involving similar delays in
access to new case-initiating documents. Courthouse News Service v. Jackson, 2009
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OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
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Case No. CV11-08083R (MANx)
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U.S. Dist. LEXIS 62300, at *14, 38 Media L. Rep. 1890 (S.D. Tex. 2009).2 And it is
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nothing more than what is already being provided to Courthouse News and other
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reporters in other state and federal courts in California and across the nation, as
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described in the Complaint at paragraphs 10-14 & Exhibit 1. And as the experience of
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these courts demonstrates, same-day access need not involve any undue cost or staff
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effort, much less the far-reaching restructuring of the California court system that
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Defendant suggests.
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II.
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THIS COURT SHOULD NOT ABSTAIN FROM DECIDING THE
IMPORTANT ISSUES OF FEDERAL LAW RAISED IN THE COMPLAINT
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Defendant has moved this Court to abstain or in the alternative dismiss the
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Complaint on the basis of the O’Shea and Pullman abstention doctrines. Neither
doctrine properly applies to the Complaint. Defendant’s abstention arguments must
thus be rejected.
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Abstention Is Strongly Disfavored; A Federal Court Should Decline To
Exercise Its Federal Question Jurisdiction In Only The Rarest Of
Situations
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Federal courts have an “unflagging obligation” to exercise their jurisdiction
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A.
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2
In Jackson, the United States District Court for the Southern District of Texas issued
a preliminary injunction requiring the Houston state court clerk to cease his practice of
delaying access to new to case-initiating civil petitions filed in that court until after
they had been fully processed and posted on his web site, and instead provide those
documents to Courthouse News Service “on the same day the petitions are filed,”
except where the filing party was seeking a temporary restraining order or other
immediate relief or had properly placed the pleading under seal. Id. at *14-15. That
preliminary injunction order was followed by a stipulated permanent injunction
requiring same-day access. Courthouse News Service v. Jackson, 2010 U.S. Dist.
LEXIS 74571, 38 Media L. Rep. 1894 (S.D. Tex. 2010). In light of these decisions,
Courthouse News respectfully disagrees with Defendant’s assertion that no court has
“even considered” whether access to new civil case filings should be provided on the
same day they are filed or submitted to the court. Def’s Memorandum, at 20.
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
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and thus should abstain from deciding issues of federal constitutional law, especially
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when raised in the context of § 1983 lawsuits, in only the most “extraordinary and
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narrow” situations. Miofsky v. Superior Court, 703 F.2d 332, 338 (9th Cir. 1983)
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(quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800,
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817-18, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), and County of Allegheny v. Frank
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Mashuda, 360 U.S. 185, 188, 79 S. Ct. 1060, 3 L. Ed. 2d 1163 (1959)). See also
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Potrero Hills Landfill, Inc. v. County of Solano, __ F.3d __, __, No. 10-15229 slip op.
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17295, 17305 (9th Cir., Sept. 13, 2011) (quoting New Orleans Public Service, Inc. v.
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Council of City of New Orleans, 491 U.S. 350, 358, 109 S. Ct. 2506, 105 L. Ed. 2d
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298 (1989) (“NOPSI”) (“[A]bstention remains an extraordinary and narrow exception
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to the general rule that federal courts ‘have no more right to decline the exercise of
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jurisdiction which is given, than to usurp that which is not given.’”). Courts must thus
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apply abstention doctrines narrowly to avoid “mak[ing] a mockery of the rule that
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only exceptional circumstances justify a federal court’s refusal to decide a case in
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deference to the States.” NOPSI, 491 U.S. at 368, and should be extremely reluctant
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to expand established abstention doctrines beyond their strictly defined bounds.
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Potrero Hills, No. 10-15229 at 17304-05; Miofsky, 703 F.2d at 338.
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B.
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The O’Shea Abstention Doctrine Does Not Apply Because The Relief
Courthouse News Seeks Will Not Be Highly Intrusive On The State
Court, Unworkable Or Require This Court To Audit The State Court
Defendant’s attempt to apply O’Shea abstention to the present matter must be
rejected because the straightforward relief Courthouse News seeks is not the type to
which the doctrine applies.
The O’Shea abstention doctrine, first announced in O’Shea v. Littleton, 414
U.S. 488, 94 S. Ct. 669 38, L. Ed. 2d 674 (1974), is a seldom-used and highly
specialized application of the abstention doctrine established by the Supreme Court in
Younger v. Harris, 401 U.S. 37, 43-44, 91 S. Ct. 746, 27 L. Ed. 2d. 669 (1971). See
Pulliam v. Allen, 466 U.S. 522, 539 n.20, 104 S. Ct. 1970, 80 L. Ed. 2d 565
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
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(describing O’Shea as being decided on “Younger v. Harris grounds”).3 Whereas
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Younger addressed the concern that federal courts not unduly interfere with pending
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state court proceedings, Middlesex County Ethics Comm’n v. Garden State Bar Ass’n,
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457 U.S. 423, 432, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982), O’Shea focused on the
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concern that federal lawsuits against state court systems would result indirectly in the
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same type of undue and serious interruption of both pending and future state court
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litigation “that Younger v. Harris and related cases sought to prevent.” 414 U.S. at
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500. The hallmark of both Younger and O’Shea is thus the actual interruption of and
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interference with the adjudication of lawsuits in the state court. See Gerstein v. Pugh,
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420 U.S. 103, 108 n.9, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) (rejecting Younger
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abstention in action to require Florida prosecutors to hold probable cause hearings).
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As such, as in Younger, a dismissal under O’Shea is based on prudential
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concerns for comity and federalism raised by the interference with state adjudicatory
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proceedings rather than a lack of jurisdiction. Benavidez v. Eu, 34 F.3d 825, 829 (9th
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Cir. 1994). Like Younger abstention, O’Shea abstention is not discretionary; this
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Court has no discretion to abstain from this case when the narrow and exacting legal
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standards of O’Shea are not strictly met. See Green v. City of Tucscon, 255 F.3d
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1086, 1093 (9th Cir. 2001) (en banc), overruled on other grounds by Gilbertson v.
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Albright, 381 F.3d 965, 968 (9th Cir. 2004) (en banc).
In O’Shea, a potential class of all African-American residents of an Illinois city
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claimed that the county magistrate and judge denied them their civil rights by setting
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higher bonds, imposing harsher confinement conditions and bringing mere ordinance
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violations to trial in a racially discriminatory and retaliatory manner, and sought an
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injunction against such practices. 414 U.S. at 491-92. As one of its bases for
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Justice White, the author of O’Shea, was a member of the majority in Pulliam as
well. Many courts analyze the O’Shea concerns as merely components of Younger
abstention. See, e.g., 31 Foster Children v. Bush, 329 F.3d 1255, 1276-77 (11th Cir.
2003); Joseph A. v. Ingram, 275 F.3d 1253, 1271 (10th Cir. 2002).
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
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dismissal, the court found that the injunction contemplated by the Seventh Circuit
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would establish a basis for future intervention that would be “a major continuing
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intrusion” because it would lead to “continuous or piecemeal interruptions” of future
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state court proceedings by “any of the members of the respondents’ broadly defined
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class.” Id. at 500. The court further found the contemplated injunction “unworkable”
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because of “inherent difficulties in defining the proper standards against which such
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claims might be measured, and the significant problems of proving noncompliance in
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individual cases” and the fact that the federal court would be required to continuously
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monitor and supervise the operation of the state court. Id. at 501-02. Because the
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class of plaintiffs was so broad and the potential violations of law so varied and
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numerous, enforcement of the contemplated injunction would require “nothing less
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than an ongoing federal audit of state criminal proceedings.” Id. at 500.
O’Shea abstention is thus required only if the requested relief meets three
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conditions: (1) it will be a major continuing intrusion, (2) it will be unworkable, and
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(3) it will require the federal court to audit/monitor the state court extensively on an
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ongoing basis.4 See Clement v. California Dep’t of Corrections, 364 F.3d 1148, 1153
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(9th Cir. 2004) (applying this formulation of O’Shea as a substantive limitation on the
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injunctive relief available against a state entity to address similar federalism and
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comity concerns).
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As with Younger, a court must not abstain unless all of these elements are satisfied;
the court is not permitted to use the strength of one element to balance out weaknesses
in the others. See Benavidez, 34 F.3d at 832. Notably, the fact of potential legislation
that might address the same issues raised in federal court is not part of the O’Shea
analysis, despite Defendant’s extensive discussion of it. Def’s Memorandum, at 1415. But, as discussed above, because the First Amendment sets the floor for the
access a state must allow the public to its court system, the Legislature can do no more
than grant the public and the media the same or greater access than what Courthouse
News seeks by the Complaint. A decision by this Court thus poses no threat of
inconsistency, uncertainty or confusion, even in the event the proposed legislation
were to ever became law.
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
In each of these elements, a high degree of intrusion upon the state court is
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essential. Surely, any federal lawsuit against a court official raises the possibility of
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some disruption to the operation of the court and some inquiry by the federal court
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into the workings of the state court. And any federal court decision finding state court
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policies invalid entails some continuing responsibility on the state court to comply.
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But treating O’Shea as barring all such actions, regardless of the degree of intrusion,
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transforms a narrow abstention doctrine into a grant to state court officers of
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immunity, a protection the Supreme Court has repeatedly denied them. See Pulliam,
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466 U.S. at 541-42 & n.20.
Thus O’Shea abstention has been confined to cases, typically class actions,
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seeking as relief wide-ranging institutional reform of the judiciary.5 And it has been
12
rejected in cases in which major restructuring is not sought, such as where the court is
13
merely required to replace an existing rule or policy with a different one.6
E.T. v. Cantil-Sakauye, __ F.3d __, No. 10-15248, slip op. 17457 (9th Cir., Sept.
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13, 2011), decided last month, and as Defendant notes, subject to a pending motion
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for rehearing en banc, is the only Ninth Circuit case that discusses O’Shea as an
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See, e.g., Pompey v. Broward County, 95 F.3d 1543, 1544-45 (11th Cir. 1996) (action
by five indigent fathers challenging numerous constitutional violations during court’s
“Daddy Roundups”); Luckey v. Miller, 976 F.2d 673, 676 (11th Cir. 1992) (class
action that sought to substantially revamp Georgia’s indigent defense system); Parker
v. Turner, 626 F.2d 1, 2 (6th Cir. 1980) (class action by indigent fathers seeking
institutional reform of juvenile courts); Gardner v. Luckey, 500 F.2d 712, 713 (5th Cir.
1974) (“sweeping class action” by prisoners to reform the Florida Public Defender
Office).
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See, e.g., Family Division Trial Lawyers of the Superior Court-D.C. v. Moultrie, 725
F.2d 695, 703-04 (D.C. Cir. 1984) (action by three attorneys who request assignments
of juvenile neglect cases seeking to change court’s payment structure); Mason v.
County of Cook, 488 F. Supp. 2d 761, 765 (N.D. Ill. 2007) (proposed class action
challenging bond hearing procedures); Lake v. Speziale, 580 F. Supp. 1318, 1331 (D.
Conn. 1984) (class action to require judges to advise indigent defendants in civil
contempt proceedings of their right to counsel).
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
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abstention doctrine, and is distinguishable from the present case on these grounds. In
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E.T., like in O’Shea, a proposed large class sought wholesale institutional reform and
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a major re-structuring of a court system, namely a decrease in the caseloads of the
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court-appointed attorneys in the Sacramento County dependency courts. Id. at 17460-
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61. The Ninth Circuit held that abstention was required because the requested relief
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would require the district court to seriously intrude upon and extensively audit the
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operation of the court system. Id. at 17643. The Ninth Circuit distinguished its
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previous decision in Los Angeles County Bar Ass’n v. Eu, 979 F.2d 697, 699 (9th Cir.
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1992) (“LA Bar”), in which the Bar sought an order that the court needed more judges.
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E.T., at 17464. In LA Bar, the Ninth Circuit concluded that it could grant the
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requested relief even though it would require some “restructuring,” and even though
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its ruling would lead to subsequent federal actions “exploring the contours” of the
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constitutional right the court would announce. 979 F.2d at 703. The E.T. court
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characterized the relief sought in E.T. as far more intrusive than the relief sought in LA
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Bar: the relief sought in LA Bar was “a simple increase in the number of judges”
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while the relief in E.T. would involve “a substantial interference with the operation of
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the program, including allocation of the judicial branch budget, establishment of
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program priorities, and court administration,” and potentially the “examination of the
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administration of substantial number of individual cases.” E.T., at 17464.
The relief sought by Courthouse News is not nearly as intrusive on the court
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system as that sought in either O’Shea or E.T. or any of the institutional reform cases.7
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Indeed, it is not even as intrusive as the appoint-more-judges relief approved of in LA
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Nor does the relief in the instant case sought bear any relation to that sought in
another case upon which Defendant relies, Ad Hoc. Comm’n on Judicial Admin v.
Massachusetts, 488 F.2d 1241, 1245-46 (1st Cir. 1973), a pre-O’Shea case, decided
primarily on political question rather than Younger grounds. In Ad Hoc Comm’n, a
putative class asked the federal court to “order enlargement and restructuring of the
entire state court system.” Id. at 1243.
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
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Bar. Courthouse News does not seek any restructuring of Ventura Superior.
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Courthouse News simply asks this Court to prohibit Defendant from affirmatively
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obstructing same day access to complaints, access that, as alleged in the Complaint,
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the media has traditionally been given in courts around the country, and which, as
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alleged in the Complaint, Defendant simply lacks the will, not the ability, to do.
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Complaint, ¶¶ 10-14 & Exh. 1, Prayer for Relief, ¶1.8
Most importantly, the hallmark of both O’Shea and Younger – the prospect that
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the federal court’s action will interfere with pending or future state adjudications – is
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entirely absent in this case. The prohibition Courthouse News seeks will not interfere
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with, interrupt, delay, disrupt, of affect the outcome of any pending or future matter in
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Ventura Superior, or in any California state court.9
Nor are any of the other O’Shea factors present. The relief Courthouse News
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seeks is eminently workable. As alleged in paragraphs 10-14 and Exhibit 1 to the
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Complaint, numerous other courts across the country provide the public and/or the
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press with same day access to complaints. Ventura Superior thus has numerous
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models for compliance with the requested relief. Moreover, the relief sought by
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Courthouse News has single and wholly objective criterion: do not obstruct same-day
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Nor does Courthouse News by its Complaint seek this Court to order Defendant to
expend funds. Complaint, Prayer for Relief ¶¶ 1-2.
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The present case is thus unlike Kaufman v. Kaye, 466 F.3d 83, 87 (2d Cir. 2006),
upon which Defendant also relies. In Kaufman, the plaintiff complained that his due
process rights were violated by the New York appellate court system’s secret process
of assigning appellate judges to matters on a non-random basis. Id. at 86. The Second
Circuit abstained because if it declared that the assignment system was
unconstitutional, it would open the door to any party who did not like his assigned
panel to delay the appeal 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 (omission in original). In contrast, any
future challenge to Ventura Superior’s compliance with the injunction will not
interrupt any proceeding in that court.
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
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access. Nor will the relief Courthouse News seeks require this Court to audit or
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monitor Ventura Superior beyond simply asking Defendant to justify his current
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policy.10
Indeed, federal actions to enforce the public’s First Amendment right of access
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to state court records and proceedings will rarely raise the federalism and comity
6
concerns that underlie both Younger and O’Shea. In The Hartford Courant Co. v.
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Pellegrino, 380 F.3d 83, 85-86 (2d Cir. 2004), a case strongly analogous to the instant
8
action, several media companies brought a § 1983 action challenging the practice of
9
the Connecticut state court system of sealing the docket sheets of certain cases so that
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the public could not discover even the existence of the litigation from the court
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records. In Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 322 (1st Cir. 1992), a
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reporter challenged the constitutionality of a Puerto Rico court rule that closed all
13
criminal preliminary hearings. In both instances, the Court rejected the defendant
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court system’s claim that the Younger abstention applied, even though similar actions
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had been filed in the state/commonwealth courts. Hartford Courant, 380 F.3d at 101;
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Defendant contends that, “most significantly,” the injunction Courthouse News
seeks will require this Court to perform case-by-case adjudications of instances when
same day access could not be provided. Def’s Memorandum, at 13. However,
Defendant both mischaracterizes the Complaint and misstates the abundant body of
First Amendment law on court access. As discussed above, supra at 3-4, the First
Amendment requires that the court that is seeking to seal its own records perform the
case-by-case adjudication to determine whether such closure is permissible. See
Globe Newspaper Co., 457 U.S. at 608. Courthouse News seeks no more than that
here: that Defendant cease his policies preventing Courthouse News from accessing
the new complaints at the end of the day on which they are filed, except where there is
a determination by the judges of his own court that delay is necessary in accordance
with First Amendment standards. To be sure, under existing law, a party may contest
in federal court a state court’s future determination that access should be delayed.
See, e.g., The Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 382-83 (N.D.
Ind. 1992). But that would be a new federal lawsuit at some later point in time, not an
enforcement action in this one. These federal lawsuits are already permitted; a
decision by this Court will not create a new basis for federal lawsuits.
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
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Rivera-Puig, 983 F.2d at 319-20. Despite the presence of federalism and comity
2
concerns, those courts held that federal court was an appropriate venue to the
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infringement of the First Amendment right of court access in state courts. Hartford
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Courant, 380 F.3d at 101; Rivera-Puig, 983 F.2d at 319-20.
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Indeed, under current law, federal courts routinely entertain challenges by the
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media to closure orders in ongoing state court litigation over federalism and comity
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objections because access issues are at most collateral to the proceedings in which
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they arise. As a federal court considering a challenge to a state court gag order found:
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An injunction issuing from this Court against the enforcement of the gag
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order ... would not prohibit in any way the pending prosecution itself
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from going forward. Any interference with the state proceedings would
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be minimal and therefore cannot justify the eschewal of the Court’s
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jurisdiction to protect the federal constitutional rights of the plaintiff.
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Connecticut Magazine v. Moraghan, 676 F. Supp. 38, 41 (D. Conn. 1987) (citations
15
omitted). See also FOCUS v. Allegheny Court of Common Pleas, 75 F.3d 834, 843
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(3rd Cir. 1996) (rejecting Younger abstention in federal court challenge to state court
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gag order); Fort Wayne Journal-Gazette, 788 F. Supp. at 382-83 (rejecting Younger
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abstention in federal court challenge to state court protective order).
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C.
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Pullman Abstention is Not Appropriate Because This Court Need Not
Decide A Single Issue of State Law
Defendant also argues that this Court should abstain under the Pullman
abstention doctrine, which permits a federal court to wait for a state court to interpret
controlling, but ambiguous, state law authoritatively. See Railroad Commission of
Texas v. Pullman, 312 U.S. 496, 500-01, 61 S. Ct. 643, 85 L. Ed. 971 (1941); see also
Wisconsin v. Constantineau, 400 U.S. 433, 438, 91 S. Ct. 507, 510, 27 L. Ed. 2d 515
(1971) (holding that abstention is not appropriate when the federal claim is not
entangled with complicated unresolved state law issues). Unlike Younger, Pullman
abstention is entirely discretionary: a federal court may retain jurisdiction even if all
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
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of the conditions for abstention are met. Potrero Hills, No. 10-15229, at 17317. In
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this case, none of the conditions are met.
Three conditions must be met before a federal court may even consider a
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Pullman abstention: (1) the complaint touches a sensitive area of state social policy
5
upon which the federal courts ought not to enter unless no alternative to its
6
adjudication is open; (2) a definitive ruling on an issue of state law would terminate
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the controversy; and (3) the possibly determinative issue of state law is doubtful.
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Ripplinger v. Collins, 868 F.2d 1043, 1048 (9th Cir. 1989).
In the Ninth Circuit, the first Pullman factor “will almost never be present” in
9
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First Amendment cases “because the guarantee of free expression is always an area of
11
particular federal concern” upon which a federal court should rule. Ripplinger, 868
12
F.2d at 1048; see Hartford Courant, 380 F.3d at 100 (denying Pullman abstention on
13
these grounds in court access case).11 Indeed, constitutional challenges based on First
14
Amendment rights “are the kind of cases that the federal courts are particularly well-
15
suited to hear.” Porter v. Jones, 319 F.3d 483, 492 (9th Cir. 2003); accord Wolfson v.
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Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010).
Nor are the second and third Pullman factors present. There is no uncertain
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question of state law that can resolve this case. Indeed, the California Supreme Court
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has already issued its definitive ruling on the rights of access to courts, and in so doing
20
adopted the First Amendment analysis developed by the U.S. Supreme Court. NBC
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Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1181, 1197-1226 &
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n.13, 86 Cal. Rptr. 2d 778 (1999) (construing Cal. Code Civ. Proc. § 124 as
23
incorporating First Amendment protections).12 California thus does not have its own
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The First Amendment right of access to courts is included in the right of free
speech. Richmond Newspapers, 448 U.S. at 580; Rivera-Puig, 983 F.2d at 322-23.
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The Judicial Council then incorporated the First Amendment requirements
described in NBC Subsidiary into its rule of court governing restrictions on access to
court records. Cal. Rule of Court 2.550.
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf
Case No. CV11-08083R (MANx)
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body of court access law that does not track the federal right; to the extent a state court
2
would be interpreting Government Code § 68150(1)’s requirement of “reasonable
3
access” to trial court records, the state court would be interpreting federal law. See
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Hartford Courant, 380 F.3d at 100 (denying Pullman abstention in court access case
5
because resolution of the state law would “not illuminate what should happen”).
6
Finally, abstention is improvident because Courthouse News would suffer even
7
further delay of a determination on its First Amendment question while its grievances
8
are heard in state court, thus exacerbating the very constitutional injury that
9
Courthouse News has asked this court to remedy. Porter, 319 F.3d at 492-93.
13
III.
DEFENDANT’S ATTEMPT TO AVOID ADJUDICATION OF HIS DELAYS
IN ACCESS UNDER THE FIRST AMENDMENT AND COMMON LAW HAS
NO MERIT, AND HIS MOTION TO DISMISS COURTHOUSE NEWS’ FIRST
AND SECOND CLAIMS FOR RELIEF SHOULD BE DENIED
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Conceding as he must that the First Amendment and common law both provide
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a right of access to civil court records and that such access must be timely, Def’s
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Memorandum, at 18, Defendant nevertheless asks this Court to dismiss Courthouse
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News’ First Amendment and common law claims (the First and Second Causes of
18
Action) for failure to state a claim. Defendant’s sole basis for dismissal of these
19
claims is his contention that neither the First Amendment nor the common law
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“guarantee” a right of same-day access to new civil complaints. As explained below,
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Defendant’s motion to dismiss these claims is not well taken and should be denied for
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at least two separate and independent reasons.
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A.
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Defendant’s Motion Should Be Denied Because The First And Second
Claims For Relief Are Grounded Not Just In The Denial Of Same-Day
Access In Particular, But Also The Overall Delays In General
As a preliminary matter, Courthouse News’ Complaint alleges a violation of the
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First Amendment and the common law right of access not just from the denial of
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same-day access in particular, but also because of delays in access in general – delays
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that, as set forth in the Complaint, commonly last for multiple days or weeks and have
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recently stretched up to 34 calendar days. Complaint, ¶¶ 29, 30.13
So long as a complaint contains “sufficient factual matter to state a facially
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plausible claim to relief,” dismissal under Federal Rule of Civil Procedure 12(b)(6) is
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‘“proper only where there is no cognizable legal theory.’” Shroyer v. New Cingular
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Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. Block,
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250 F.3d 729, 732 (9th Cir. 2001)). Moreover, “a complaint should not be dismissed
8
for legal insufficiency except where there is failure to state a claim on which some
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relief, not limited by the request in the complaint, can be granted.” Doe v. United
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States Dep’t of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985) (quoting Norwalk Core
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v. Norwalk Redevelopment Agency, 395 F.2d 920, 925-26 (2d Cir. 1968)). Accord,
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e.g., Massey v. Banning Unified School Dist., 256 F. Supp. 2d 1090, 1092 (C.D. Cal.
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2003) (“‘It need not appear that plaintiff can obtain the specific relief demanded as
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long as the court can ascertain from the face of the complaint that some relief can be
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granted.’”) (quoting Doe, 753 F.2d at 1104).
As Courthouse News will demonstrate as this case proceeds, under the
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particular facts and circumstances of this case, it is entitled to injunctive and
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declaratory relief that would require Defendant to refrain from his policy of denying
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its reporter, who visits Ventura Superior at the end of each court day for the specific
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purpose of viewing newly filed unlimited civil complaints, with access at the end of
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each court day to the approximately 15 unlimited civil complaints that are filed each
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day with that court. However, the Complaint is not so limited. As such, Defendant is
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not entitled to dismissal.
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As noted above, although Ventura Superior is not the only California superior court
where Courthouse News has recently been encountering delays, the extent of those
delays, and Defendant’s resistant attitude to working cooperatively with Courthouse
News to resolve them, make Ventura Superior one of the worst courts in the state in
terms of delayed access to new complaints.
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
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Whether A Denial Of Same Day Access Violates The First Amendment
And Common Law Rights Of Access Is A Factual Inquiry To Be
Determined On A Case-By-Case Basis, And Is Not An Appropriate Basis
For Dismissal Under FRCP 12(b)(6)
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Determining whether there has been a violation of the First Amendment and/or
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B.
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common law right of access involves a two-step process. The first step is to determine
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whether a right of access attaches in the first instance. In the case of the First
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Amendment right of access, courts use the two-prong inquiry first employed by the
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Supreme Court in Richmond Newspapers, which examines the considerations of
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“tradition” and “logic” to determine whether a constitutional right of access exists.
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448 U.S. at 564-76; accord, e.g., Press-Enterprise II, 478 U.S. at 8-10. In the case of
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the common law right of access, in the Ninth Circuit, the right has been recognized as
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applying to all court files except for that very narrow range of records that, for policy
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reasons, have “traditionally been kept secret.” Kamakana v. City & County of
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Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Times Mirror Co v. United States, 873
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F.2d 1210 (9th Cir. 1989).
Once it is determined that the First Amendment and common law right of
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access attach to a particular document or class of documents – in this case, unlimited
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jurisdiction civil complaints filed in a state court – the inquiry shifts to whether the
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party seeking to restrict access can do so. In order to deny access, the strict standards
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for overcoming that right of access, as set forth in section I(A) above, must be met.14
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The same scrutiny is applied where a court seeks to deny access temporarily; as
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In the case of the common law right of access, the presumption of access can be
overcome only on the basis of “‘articulable facts, known to the court, not on the basis
of unsupported hypothesis or conjecture.’” Valley Broad. Co. v. United States District
Court, 798 F.2d 1289, 1293 (9th Cir. 1986) (quoting and adopting the rule of United
States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982) and rejecting a less rigorous
requirement). Moreover, the party seeking to restrict access must have a compelling
reason to do so; a “good cause” showing will not suffice. Kamakana, 447 F.3d at
1180.
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numerous state and federal courts have previously recognized, all but de minimis
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delays in access are the functional equivalent of access denials. E.g., Associated
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Press, 705 F.2d at 1147 (district court’s withholding of newly filed documents for 48
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hours after filing as part of a procedure designed to protect the defendant’s Sixth
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Amendment right to a fair trial was “a total restraint on the public’s first amendment
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right of access even though the restraint is limited in time”); Globe Newspaper Co. v.
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Pokaski, 868 F.2d 497, 507 (1st Cir. 1989) (“even a one to two day delay
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impermissibly burdens the First Amendment”); Jackson, 2009 U.S. Dist. LEXIS
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62300, at *11 (“the 24 to 72 hour delay in access is effectively an access denial and is,
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therefore, unconstitutional”); NBC Subsidiary, 20 Cal. 4th at 1220 & n.42 (even
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temporary denials of access warrant “exacting First Amendment scrutiny”); In re
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Estate of Hearst, 67 Cal. App. 3d 777, 785, 136 Cal. Rptr. 821 (1977) (even
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temporary limitations on public access to court records require a “sufficiently strong
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showing of necessity”).
Defendant conflates this two-part analysis by denying the existence of any
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“First Amendment” right of “same day access.” Having conceded the First
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Amendment right of access to civil records, the extent to which access may be
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temporarily denied is an issue for the second part of the analysis. But Defendant
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disclaims any need to perform that second part of the analysis at all. Such an end run
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around the First Amendment is not permitted, and does not support dismissal.
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C.
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Defendant’s Other Arguments In Support Of His Motion To Dismiss Lack
Merit
Although no further analysis is needed to conclude that Defendant’s motion to
dismiss Courthouse News’ first and second claims for relief should be denied, certain
other arguments advanced by Defendant in connection with his motion lack merit and
warrant a response:
A tradition of same-day access in other courts – In paragraphs 10-14 of its
Complaint and the Access Summary attached as Exhibit 1 thereto, Courthouse News
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provided examples of some, but not all, of the state and federal courts around the
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nation that have traditionally and continue to provide reporters who visit each court
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day with access to newly filed cases at the end of the court day on which they are
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filed. In an effort to avoid this reality, Defendant characterizes these access practices
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as mere “courtesies” and takes issue with what he refers to as a “deficient sampling,”
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arguing that this “does not constitute a ‘tradition’ of anything, much less warrant
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imposition of a right to ‘same-day access.’” Def’s Memorandum, at 21. Setting aside
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the fact that for the purposes of this motion, the allegations in the Complaint must be
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taken as true, Courthouse News has two main responses.
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First, the tradition of daily, same-day access that Courthouse News describes
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has not occurred in a vacuum. Quite appropriately, it is one that has developed in
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those courts that reporters from various media outlets actually visit on a daily basis to
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review the new civil actions. For the purposes of the Complaint and Access
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Summary, Courthouse News focused only on those larger courts that its reporters visit
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on a daily basis.
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Second, while some courts have, in recent years, imposed administrative tasks
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between the filing of a new complaint and its being made available to the press that
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have resulted in delays in access, many courts still do provide this same-day access.
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Moreover, the fact that delays in access have recently become a problem in some
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courts does not change the historical provision of same-day access to reporters who
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visit the court every day, a tradition that Courthouse News has been able to observe
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firsthand throughout its twenty-one year history. Complaint, ¶¶ 10, 14.
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Defendant’s suggestion that same-day courts are predominantly e-filing
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courts is wrong – Defendant also complains that many of the courts providing same-
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day access “employ e-filing systems that dramatically reduce the processing burdens
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on clerk office staff,” suggesting that because Ventura Superior is not an e-filing
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court, this somehow excuses the access delays occurring at his court. Def’s
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Memorandum, at 9-10, 21. There are two problems with this. First, Defendant
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misstates the facts. While federal courts are indeed e-filing courts, in many of those
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courts – including this Court and the Northern District of California – the case-
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initiating document, i.e., the complaint, is filed in paper form. See Complaint, ¶ 11 &
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Exh. 1. Similarly, there are numerous examples of state courts, both in California and
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throughout the nation, that provide same-day access to new complaints that are not e-
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filed but are rather filed in the traditional paper form. In California, these superior
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courts include the San Francisco, Los Angeles, Alameda, Santa Clara, Contra Costa,
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and the Riverside County superior courts. Complaint, ¶¶ 11-12 & Exh. 1.15
Second, contrary to Defendant’s suggestion, e-filing is not the cure for access
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delays. Courthouse News has observed that in many instances, e-filing has led to
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access delays where none existed before. See Complaint, ¶ 13 & Exh. 1 (describing
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the delays in access that followed mandatory e-filing at the Eighth Judicial District
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Court in Las Vegas, Nevada).
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Edwards does not entitle Ventura Superior to continue its practice of
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delayed access – Contrary to Defendant’s suggestion, United States v. Edwards, 823
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F.2d 111 (5th Cir. 1987), does not stand for the proposition, as he alleges, that there is
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“no recognized right of ‘same day access’” to court records. Rather, in Edwards, the
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Fifth Circuit held that the trial court did not err, under the facts and circumstances in
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that particular case, in delaying release of closed hearing transcripts concerning juror
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misconduct until after the jury had reached its verdict. In Edwards, a criminal trial
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was underway and the Court was forced to weigh the First Amendment interests at
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stake with the “paramount interest in maintaining an impartial jury and its inherent
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vulnerability.” Id. at 119. Here, there is no “paramount” interest in delaying access
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that even approaches the interest in protecting an impartial jury, and the Sixth
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At the Los Angeles, Alameda, and Riverside County Superior Courts, complaints
are scanned immediately on intake and made available for viewing in electronic form.
In Santa Clara, Contra Costa, and San Francisco Counties, complaints are made
available for viewing in their as-filed paper form. Complaint, Exh. 1.
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Amendment rights of a defendant, and even assuming arguendo that Defendant were
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to attempt to articulate such an interest, that inquiry is the second part of the First
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Amendment and common law analysis and would not support dismissal under Rule
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12(b)(6).
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The differences between Edwards and the present situation are further
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confirmed by the Southern District of Texas’ discussion of that case in Jackson.
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Distinguishing Edwards, the Southern District explained:
Defendants attempt to analogize the 24 to 72 hour delay in access
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in this case to the district court’s refusal to release transcripts of closed
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proceedings prior to the jury verdict in Edwards. In Edwards, the Fifth
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Circuit held that the district court did not err in its decision because it
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reasonably restricted access given the paramount interest in maintaining
13
an impartial jury. ... The Fifth Circuit went on to state that the trial court
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should avoid unnecessary delay in releasing the record of closed
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proceedings following the trial. Id. The Court is unpersuaded by
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Defendants’ argument and finds that the delay in access to newly-filed
17
petitions in this case is not a reasonable limitation on access.
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Jackson, 2009 U.S. Dist. LEXIS 62300, at *12-13 (2009).
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The press has a legitimate interest in timely access to new civil case filings –
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Defendant contends that the press and public do not have legitimate interest in timely
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access to newly filed civil case-initiating documents. Def’s Memorandum, at 22
22
(“The public’s interest in being on ‘watch’ at the case-initiation stage of a civil case is
23
far less pronounced, if it exists at all, than in pending criminal proceedings”).
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Defendant’s view ignores the many authorities noted above that recognize the public
25
interest in ensuring timely access to civil proceedings in general, as well as those
26
authorities noting the public interest to civil complaints in particular. E.g., Jackson,
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2009 U.S. Dist. LEXIS 62300, at *14 (“There is an important First Amendment
28
interest in providing timely access to new case-initiating documents.”); In re NVIDIA,
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2008 WL 1859067, at *3 (N.D. Cal. 2008) (“[W]hen a plaintiff invokes the Court’s
2
authority by filing a complaint, the public has a right to know who is invoking it, and
3
toward what purpose, and in what manner.”); In re Eastman Kodak Co., 2010 WL
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2490982 at *1 (S.D.N.Y. 2010) (a complaint “is a pleading essential to the Court’s
5
adjudication of the matter as well as the public’s interest in monitoring the federal
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courts.”).
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IV.
GIVEN DEFENDANT’S ASSERTION OF ELEVENTH AMENDMENT
IMMUNITY, COURTHOUSE NEWS CONSENTS TO THE DISMISSAL OF
ITS STATE LAW CLAIM, AND THAT CLAIM ONLY
The Eleventh Amendment grants a state defendant the power to assert a
sovereign immunity defense, barring a state law claim against it in federal court,
should it choose to do so. Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381,
389, 118 S. Ct. 2047, 2052, 141 L. Ed. 2d 364, 372 (1998). Defendant having now
asserted sovereign immunity over the state law claim included in the Complaint,
Courthouse News consents to the dismissal of the Third Cause of Action.
Defendant’s assertion of sovereign immunity does not, however, affect the
viability of the First or Second Cause of Action, which are both federal law claims. Id.
at 389-90. See Papasan v. Allen, 478 U.S. 265, 277-78, 106 S. Ct. 2932, 92 L. Ed. 2d
209 (1986) (holding that sovereign immunity does not bar claims for prospective relief
against state defendants when such relief is based on ongoing violations of the
plaintiff’s federal law rights).
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CONCLUSION
Defendant’s motion to dismiss and abstain boils down to his positions that he
should not be required to comply with the substantive and procedural requirements of
the First Amendment right of access, and that his lack of compliance should not be
subject to adjudication by a federal court. Neither one has any merit.
Accordingly, Plaintiff Courthouse News Service respectfully requests that
Defendant’s motion to dismiss and abstain be denied as to Courthouse News Service’s
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First and Second Causes of Action for violations of the First Amendment and
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common law. Defendant having now asserted sovereign immunity over the state law
3
claim, Courthouse News consents to the dismissal of the Third Cause of Action, and
4
respectfully requests that it be given 30 days to amend its Complaint accordingly.
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Date: October 31, 2011
HOLME ROBERTS & OWEN LLP
RACHEL MATTEO-BOEHM
DAVID GREENE
LEILA KNOX
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By:
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/s/ Rachel Matteo-Boehm
Rachel Matteo-Boehm
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE
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PLAINTIFF COURTHOUSE NEWS SERVICE’S
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