Courthouse News Service v. Michael Planet

Filing 24

OPPOSITION to MOTION to Dismiss Case and Abstain #21 filed by Plaintiff Courthouse News Service. (Attachments: #1 Proposed Order)(Matteo-Boehm, Rachel)

1
2
3
4
5
6
7
8
9
10

Rachel Matteo-Boehm (SBN 195492)
[e-mail]
David Greene (SBN 160107)
[e-mail]
Leila C. Knox (SBN 245999)
[e-mail]
HOLME ROBERTS & OWEN LLP
560 Mission Street, Suite 250
San Francisco, CA 94105-2994
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE

11

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

12
13
14

Courthouse News Service,

CASE NO. CV11-08083 R (MANx)

15

Plaintiff,

16
17
18
19
20

v.
Michael D. Planet, in his official
capacity as Court Executive
Officer/Clerk of the Ventura County
Superior Court.

21

Defendant.

22

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

23
24
25
26
27
28

PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

TABLE OF CONTENTS

1
2

Page

3

INTRODUCTION ......................................................................................................... 1

4

I.

5
6

DEFENDANT’S MOTION MISSTATES THE NATURE OF THE
RELIEF COURTHOUSE NEWS SEEKS, AND CERTAIN
CORRECTIONS TO DEFENDANT’S ASSERTIONS ARE ALSO IN
ORDER .................................................................................................................. 2

7

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

8
9
10
11

B.

The Failure Of SB 326 To Pass Earlier This Year Demonstrates
The Need For This Court To Act ................................................................... 3

C.

12

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

13
14
15
16
17
18
19
20

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

21
22

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

23
24
25
26
27
28

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
i
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

COURTHOUSE NEWS’ FIRST AND SECOND CLAIMS FOR RELIEF
SHOULD BE DENIED.......................................................................................... 16

2
3
4
5

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

6
7
8
9
10
11
12
13

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

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

TABLE OF AUTHORITIES

1

FEDERAL CASES

2

Page(s)

3
4
5
6
7
8
9
10
11
12

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

13
14

Colorado River Water Conservation District v. United States,
424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976) ......................................7

15
16

Connecticut Magazine v. Moraghan,
676 F. Supp. 38 (D. Conn. 1987).......................................................................14

17
18

County of Allegheny v. Frank Mashuda,
360 U.S. 185, 79 S. Ct. 1060, 3 L. Ed. 2d 1163 (1959) ......................................7

19
20
21
22
23
24
25
26
27

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

28
iii
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

E.T. v. Cantil-Sakauye,
___ F.3d ___, No. 10-15248, slip op. 17457 (9th Cir., Sept. 13, 2011).......10, 11

2
3

FOCUS v. Allegheny Court of Common Pleas,
75 F.3d 834 (3rd Cir. 1996) ................................................................................14

4
5

Family Division Trial Lawyers of the Superior Court-D.C. v. Moultrie,
725 F.2d 695 (D.C. Cir. 1984)...........................................................................10

6
7

Gardner v. Luckey,
500 F.2d 712 (5th Cir. 1974) ..............................................................................10

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

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

28
iv
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

Luckey v. Miller,
976 F.2d 673 (11th Cir. 1992) ............................................................................10

2
3

Mason v. County of Cook,
488 F. Supp. 2d 761 (N.D. Ill. 2007).................................................................10

4
5

Massey v. Banning Unified School District,
256 F. Supp. 2d 1090 (C.D. Cal. 2003) .............................................................17

6
7

Middlesex County Ethics Commission v. Garden State Bar Association,
457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982) ....................................8

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

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

28
v
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

Pompey v. Broward County,
95 F.3d 1543 (11th Cir. 1996) ............................................................................10

2
3

Porter v. Jones,
319 F.3d 483 (9th Cir. 2003) ........................................................................15, 16

4
5

Potrero Hills Landfill, Inc. v. County of Solano,
__ F.3d __, No. 10-15229 slip op. 17295 (9th Cir., Sept. 13, 2011)..............7, 15

6
7

Press-Enterprise Co. v. Superior Court,
478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) ......................................3, 18

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

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

28
vi
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

United States v. Edwards,
672 F.2d 1289 (7th Cir. 1982) ............................................................................18

2
3

United States v. Edwards,
823 F.2d 111 (5th Cir. 1987) ........................................................................21, 22

4
5

Valley Broad. Co. v. United States District Court,
798 F.2d 1289 (9th Cir. 1986) ............................................................................18

6
7

Wisconsin Department of Corrections v. Schacht,
524 U.S. 381, 118 S. Ct. 2047, 141 L. Ed. 2d 364 (1998) ................................23

8
9
10
11
12
13

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

14

STATE CASES

15
16

In re Estate of Hearst,
67 Cal. App. 3d 777, 136 Cal. Rptr. 821 (1977) ...............................................19

17
18

NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
20 Cal. 4th 1178, 86 Cal. Rptr. 2d 778 (1999) .............................................15, 19

19

FEDERAL STATUTES

20
21

Federal Rule of Civil Procedure 12(b)(6) ................................................4, 17, 18, 22

22
23

STATE STATUTES
Cal. Code Civ. Proc. § 124 ......................................................................................15

24
25
26

Cal. Rule of Court 2.550 ..........................................................................................15
California Government Code § 68150.............................................................3, 5, 16

27
28

California Penal Code § 868 ......................................................................................3
vii
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

INTRODUCTION

1
2

The public’s right of timely access to court records is not simply a “courtesy”

3

granted by the courts. It is a fundamental civil liberty that the courts cannot infringe

4

upon without conducting a demanding constitutional analysis, even though court

5

executives like Defendant may prefer to avoid it.

6

Despite acknowledging that the public has First Amendment rights of access to

7

the court records in his control, Defendant shows little respect for those rights, and

8

seems affronted by a request that such access be timely. Moreover, Defendant is

9

dismissive of the press’s role, recognized repeatedly by the Supreme Court, in

10

obtaining access to the courts as the public’s surrogate. See Richmond Newspapers,

11

Inc. v. Virginia, 448 U.S. 555, 573, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).

12

In an effort to avoid having a federal court examine his practice of denying

13

access to civil complaints until his staff – and his staff alone – exercising its unfettered

14

discretion, determines when it will make those records available, Defendant

15

mischaracterizes both the First Amendment rights at issue and the relief Courthouse

16

News seeks to vindicate those rights. As the Supreme Court has repeatedly held,

17

when a First Amendment right of access exists, blanket rules and policies restricting

18

such access must give way to case-by-case determinations in order to ensure that

19

access is restricted in only exceptional circumstances. The Complaint in this case

20

seeks only injunctive and declaratory relief that would prevent Defendant from

21

continuing his practice of restricting access to new complaints without complying

22

with the procedural and substantive requirements the Supreme Court and the Ninth

23

Circuit have set forth. Nor is there any reason for this Court to abstain from deciding

24

these issues of federal constitutional law, leaving Courthouse News to enforce these

25

rights in the very court that is denying them.

26

With one exception, see infra, Defendant’s Motion to Dismiss and Abstain must

27

thus be rejected. The Complaint clearly sets forth claims based on the denials of the

28

rights of access for which this Court can, and should, grant relief.
1
MPA IN SUPPT. OF MOTION FOR PRELIMINARY INJUNCTION
#75371 v1 saf

1

I.

3

DEFENDANT’S MOTION MISSTATES THE NATURE OF THE RELIEF
COURTHOUSE NEWS SEEKS, AND CERTAIN CORRECTIONS TO
DEFENDANT’S ASSERTIONS ARE ALSO IN ORDER

4

As a preliminary matter, Defendant’s motion to dismiss and abstain is notable

5

for the extent to which it misstates both the nature Courthouse News’ claims as well

6

as the facts and the law relevant to those claims. Accordingly, before proceeding to

7

address the merits of Defendant’s motion, certain preliminary observations and

8

corrections are in order.

9

A.

2

10
11

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

12

Defendant concedes, as he must, that there is a First Amendment right of access

13

to civil court records, and that such access must be timely. Def’s Memorandum, at 18

14

(“CNS alleges that it has both a constitutional and common-law right of access to

15

court records, and that such access must be timely. ... Ventura Superior Court does not

16

dispute either proposition”). Nor does he appear to dispute that there is a First

17

Amendment right of access to civil court complaints. However, he fails to appreciate

18

two important features of the First Amendment access right.

19

First, once the First Amendment right of access is found to attach to a record or

20

a class of records, it can only be overcome on a case-by-case basis, by way of an

21

adjudicative process performed by a judge where the party seeking to restrict access

22

satisfies the stringent three-part test established by the Ninth Circuit. United States v.

23

Brooklier, 685 F.2d 1162, 1168-69 (9th Cir. 1982). Under the test, the party seeking to

24

restrict access (in this case, Defendant) must prove: (1) the existence of a right of

25

comparable importance to the First Amendment that is threatened by public access to

26

the court records; (2) a substantial probability of irreparable damage to the asserted

27

right will result if access is not withheld; and (3) a substantial probability that

28

alternatives to withholding access will not adequately protect the asserted right.
2
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

Phoenix Newspapers, Inc. v. United States District Court, 156 F.3d 940, 949 (9th Cir.

2

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

3
4

Court Defendant relies on may trump the federal constitutional right of access. In its

5

landmark 1986 decision in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14,

6

106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (“Press-Enterprise II”), the U.S. Supreme

7

Court found California Penal Code § 868 unconstitutional because the law permitted

8

courts to close criminal preliminary hearings on a mere showing of a reasonable

9

probability of harm rather than meeting the more demanding test mandated by the

10

First Amendment. Similarly, in 1982, the high court held unconstitutional a

11

Massachusetts state statute requiring trial courts to exclude the public from the

12

courtroom during the testimony of a minor victim of a sex crime in all instances; such

13

determinations, the high court said, would have to be made on a case-by-case basis in

14

accordance with First Amendment standards. Globe Newspaper Co. v. Superior

15

Court, 457 U.S. 596, 606-08, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982).

16

As these and other cases make clear, neither Government Code § 68150 nor the

17

Rules of Court on which Defendant relies can set lower standards for access than what

18

is required by the First Amendment. Senate Bill 326 would have provided clear

19

direction to trial courts to provide same day access, but it would not have allowed

20

courts to provide fewer rights than those already guaranteed by the Constitution.

21

Thus, neither existing state law nor SB 326 should deter this Court from making a

22

determination about Courthouse News’ First Amendment rights.

23

B.

24
25
26
27
28

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
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

14 & Exhibit 1 of Courthouse News’ Complaint,1 courts have provided same-day

2

access to new civil complaints after initial intake tasks, for example accepting the

3

filing fee, assigning a case number, and/or noting the first-named plaintiffs and

4

defendants on an intake log, but well before full processing. This enabled reporters

5

who visit courts at the end of each court day to review the large majority of civil cases

6

filed earlier that same day. Many courts in California and across the nation still

7

provide the traditional same-day access in this manner, including this Court. See

8

Complaint ¶¶ 10-14 & Exh. 1. As indicated in the bill text, however, the use of new

9

electronic technologies for filing court actions and modernizing access to court

10

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

11
12

Judicial Council, which governs California’s state courts, to adopt a Rule of Court

13

requiring newly filed complaints to be made available for inspection at the courthouse

14

no later than the end of each court day. However, as Defendant readily acknowledges,

15

that bill did not make it out of committee this year, and it is strongly opposed by the

16

California Judicial Council, Administrative Office of the Courts. Given this reality,

17

and having tried and failed in its efforts to work cooperatively with Defendant and his

18

staff to resolve the delays in access at Ventura Superior, Courthouse News’ only real

19

avenue to resolving those delays was federal litigation. Thus, if anything, SB 326

20

only serves to emphasize the need for this Court to exercise its jurisdiction over the

21

current dispute.

22
23
24
25
26
27
28

1

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).
4
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

One final point about SB 326 is also in order. On page 8 of his

1
2

memorandum, Defendant asserts that in sponsoring the bill, Courthouse News

3

“claimed that: (a) Government Code section 68150 already ‘provides the public

4

with reasonable access to court records;’” and that “(b) the term ‘reasonable

5

access is not defined ... .’” Def’s Memorandum, at 8; see also 17 (making similar

6

assertions about what Courthouse News purportedly “acknowledged”).
This is flat-out wrong. Courthouse News never claimed that Government Code

7
8

§ 68150 “already ‘provides the public with reasonable access to court records,’” nor

9

has it ever “acknowledged” that “the term ‘reasonable access is not defined.’” As is

10

clear from Defendant’s own Request for Judicial Notice, these “claims” were made

11

not by Courthouse News but rather by the California Senate Judiciary Committee, the

12

author of the Bill Analysis in question. Def’s RJN, Exh. B at B9.

13

C.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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
5
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

U.S. Dist. LEXIS 62300, at *14, 38 Media L. Rep. 1890 (S.D. Tex. 2009).2 And it is

2

nothing more than what is already being provided to Courthouse News and other

3

reporters in other state and federal courts in California and across the nation, as

4

described in the Complaint at paragraphs 10-14 & Exhibit 1. And as the experience of

5

these courts demonstrates, same-day access need not involve any undue cost or staff

6

effort, much less the far-reaching restructuring of the California court system that

7

Defendant suggests.

8

II.

9

THIS COURT SHOULD NOT ABSTAIN FROM DECIDING THE
IMPORTANT ISSUES OF FEDERAL LAW RAISED IN THE COMPLAINT

10

Defendant has moved this Court to abstain or in the alternative dismiss the

11
12
13
14

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.

16

Abstention Is Strongly Disfavored; A Federal Court Should Decline To
Exercise Its Federal Question Jurisdiction In Only The Rarest Of
Situations

17

Federal courts have an “unflagging obligation” to exercise their jurisdiction

15

A.

18
19
20
21
22
23
24
25
26
27
28

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.
6

PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

and thus should abstain from deciding issues of federal constitutional law, especially

2

when raised in the context of § 1983 lawsuits, in only the most “extraordinary and

3

narrow” situations. Miofsky v. Superior Court, 703 F.2d 332, 338 (9th Cir. 1983)

4

(quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800,

5

817-18, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), and County of Allegheny v. Frank

6

Mashuda, 360 U.S. 185, 188, 79 S. Ct. 1060, 3 L. Ed. 2d 1163 (1959)). See also

7

Potrero Hills Landfill, Inc. v. County of Solano, __ F.3d __, __, No. 10-15229 slip op.

8

17295, 17305 (9th Cir., Sept. 13, 2011) (quoting New Orleans Public Service, Inc. v.

9

Council of City of New Orleans, 491 U.S. 350, 358, 109 S. Ct. 2506, 105 L. Ed. 2d

10

298 (1989) (“NOPSI”) (“[A]bstention remains an extraordinary and narrow exception

11

to the general rule that federal courts ‘have no more right to decline the exercise of

12

jurisdiction which is given, than to usurp that which is not given.’”). Courts must thus

13

apply abstention doctrines narrowly to avoid “mak[ing] a mockery of the rule that

14

only exceptional circumstances justify a federal court’s refusal to decide a case in

15

deference to the States.” NOPSI, 491 U.S. at 368, and should be extremely reluctant

16

to expand established abstention doctrines beyond their strictly defined bounds.

17

Potrero Hills, No. 10-15229 at 17304-05; Miofsky, 703 F.2d at 338.

18

B.

19
20
21
22
23
24
25
26
27

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

28
7
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

(describing O’Shea as being decided on “Younger v. Harris grounds”).3 Whereas

2

Younger addressed the concern that federal courts not unduly interfere with pending

3

state court proceedings, Middlesex County Ethics Comm’n v. Garden State Bar Ass’n,

4

457 U.S. 423, 432, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982), O’Shea focused on the

5

concern that federal lawsuits against state court systems would result indirectly in the

6

same type of undue and serious interruption of both pending and future state court

7

litigation “that Younger v. Harris and related cases sought to prevent.” 414 U.S. at

8

500. The hallmark of both Younger and O’Shea is thus the actual interruption of and

9

interference with the adjudication of lawsuits in the state court. See Gerstein v. Pugh,

10

420 U.S. 103, 108 n.9, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) (rejecting Younger

11

abstention in action to require Florida prosecutors to hold probable cause hearings).

12

As such, as in Younger, a dismissal under O’Shea is based on prudential

13

concerns for comity and federalism raised by the interference with state adjudicatory

14

proceedings rather than a lack of jurisdiction. Benavidez v. Eu, 34 F.3d 825, 829 (9th

15

Cir. 1994). Like Younger abstention, O’Shea abstention is not discretionary; this

16

Court has no discretion to abstain from this case when the narrow and exacting legal

17

standards of O’Shea are not strictly met. See Green v. City of Tucscon, 255 F.3d

18

1086, 1093 (9th Cir. 2001) (en banc), overruled on other grounds by Gilbertson v.

19

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

20
21

claimed that the county magistrate and judge denied them their civil rights by setting

22

higher bonds, imposing harsher confinement conditions and bringing mere ordinance

23

violations to trial in a racially discriminatory and retaliatory manner, and sought an

24

injunction against such practices. 414 U.S. at 491-92. As one of its bases for

25
26
27
28

3

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).
8
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

dismissal, the court found that the injunction contemplated by the Seventh Circuit

2

would establish a basis for future intervention that would be “a major continuing

3

intrusion” because it would lead to “continuous or piecemeal interruptions” of future

4

state court proceedings by “any of the members of the respondents’ broadly defined

5

class.” Id. at 500. The court further found the contemplated injunction “unworkable”

6

because of “inherent difficulties in defining the proper standards against which such

7

claims might be measured, and the significant problems of proving noncompliance in

8

individual cases” and the fact that the federal court would be required to continuously

9

monitor and supervise the operation of the state court. Id. at 501-02. Because the

10

class of plaintiffs was so broad and the potential violations of law so varied and

11

numerous, enforcement of the contemplated injunction would require “nothing less

12

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

13
14

conditions: (1) it will be a major continuing intrusion, (2) it will be unworkable, and

15

(3) it will require the federal court to audit/monitor the state court extensively on an

16

ongoing basis.4 See Clement v. California Dep’t of Corrections, 364 F.3d 1148, 1153

17

(9th Cir. 2004) (applying this formulation of O’Shea as a substantive limitation on the

18

injunctive relief available against a state entity to address similar federalism and

19

comity concerns).

20
21
22
23
24
25
26
27
28

4

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.
9
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

1
2

essential. Surely, any federal lawsuit against a court official raises the possibility of

3

some disruption to the operation of the court and some inquiry by the federal court

4

into the workings of the state court. And any federal court decision finding state court

5

policies invalid entails some continuing responsibility on the state court to comply.

6

But treating O’Shea as barring all such actions, regardless of the degree of intrusion,

7

transforms a narrow abstention doctrine into a grant to state court officers of

8

immunity, a protection the Supreme Court has repeatedly denied them. See Pulliam,

9

466 U.S. at 541-42 & n.20.
Thus O’Shea abstention has been confined to cases, typically class actions,

10
11

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.

14
15

13, 2011), decided last month, and as Defendant notes, subject to a pending motion

16

for rehearing en banc, is the only Ninth Circuit case that discusses O’Shea as an

17
18
19
20
21
22
23
24
25
26
27
28

5

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).
6

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).
10
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

abstention doctrine, and is distinguishable from the present case on these grounds. In

2

E.T., like in O’Shea, a proposed large class sought wholesale institutional reform and

3

a major re-structuring of a court system, namely a decrease in the caseloads of the

4

court-appointed attorneys in the Sacramento County dependency courts. Id. at 17460-

5

61. The Ninth Circuit held that abstention was required because the requested relief

6

would require the district court to seriously intrude upon and extensively audit the

7

operation of the court system. Id. at 17643. The Ninth Circuit distinguished its

8

previous decision in Los Angeles County Bar Ass’n v. Eu, 979 F.2d 697, 699 (9th Cir.

9

1992) (“LA Bar”), in which the Bar sought an order that the court needed more judges.

10

E.T., at 17464. In LA Bar, the Ninth Circuit concluded that it could grant the

11

requested relief even though it would require some “restructuring,” and even though

12

its ruling would lead to subsequent federal actions “exploring the contours” of the

13

constitutional right the court would announce. 979 F.2d at 703. The E.T. court

14

characterized the relief sought in E.T. as far more intrusive than the relief sought in LA

15

Bar: the relief sought in LA Bar was “a simple increase in the number of judges”

16

while the relief in E.T. would involve “a substantial interference with the operation of

17

the program, including allocation of the judicial branch budget, establishment of

18

program priorities, and court administration,” and potentially the “examination of the

19

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

20
21

system as that sought in either O’Shea or E.T. or any of the institutional reform cases.7

22

Indeed, it is not even as intrusive as the appoint-more-judges relief approved of in LA

23
24
25
26
27
28

7

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.
11
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

Bar. Courthouse News does not seek any restructuring of Ventura Superior.

2

Courthouse News simply asks this Court to prohibit Defendant from affirmatively

3

obstructing same day access to complaints, access that, as alleged in the Complaint,

4

the media has traditionally been given in courts around the country, and which, as

5

alleged in the Complaint, Defendant simply lacks the will, not the ability, to do.

6

Complaint, ¶¶ 10-14 & Exh. 1, Prayer for Relief, ¶1.8
Most importantly, the hallmark of both O’Shea and Younger – the prospect that

7
8

the federal court’s action will interfere with pending or future state adjudications – is

9

entirely absent in this case. The prohibition Courthouse News seeks will not interfere

10

with, interrupt, delay, disrupt, of affect the outcome of any pending or future matter in

11

Ventura Superior, or in any California state court.9
Nor are any of the other O’Shea factors present. The relief Courthouse News

12
13

seeks is eminently workable. As alleged in paragraphs 10-14 and Exhibit 1 to the

14

Complaint, numerous other courts across the country provide the public and/or the

15

press with same day access to complaints. Ventura Superior thus has numerous

16

models for compliance with the requested relief. Moreover, the relief sought by

17

Courthouse News has single and wholly objective criterion: do not obstruct same-day

18
19
8

20
21
22
23
24
25
26
27
28

Nor does Courthouse News by its Complaint seek this Court to order Defendant to
expend funds. Complaint, Prayer for Relief ¶¶ 1-2.
9

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.
12
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

access. Nor will the relief Courthouse News seeks require this Court to audit or

2

monitor Ventura Superior beyond simply asking Defendant to justify his current

3

policy.10
Indeed, federal actions to enforce the public’s First Amendment right of access

4
5

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.

7

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

10

the public could not discover even the existence of the litigation from the court

11

records. In Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 322 (1st Cir. 1992), a

12

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

14

court system’s claim that the Younger abstention applied, even though similar actions

15

had been filed in the state/commonwealth courts. Hartford Courant, 380 F.3d at 101;

16
17
18
19
20
21
22
23
24
25
26
27
28

10

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.
13
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

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

3

infringement of the First Amendment right of court access in state courts. Hartford

4

Courant, 380 F.3d at 101; Rivera-Puig, 983 F.2d at 319-20.

5

Indeed, under current law, federal courts routinely entertain challenges by the

6

media to closure orders in ongoing state court litigation over federalism and comity

7

objections because access issues are at most collateral to the proceedings in which

8

they arise. As a federal court considering a challenge to a state court gag order found:

9

An injunction issuing from this Court against the enforcement of the gag

10

order ... would not prohibit in any way the pending prosecution itself

11

from going forward. Any interference with the state proceedings would

12

be minimal and therefore cannot justify the eschewal of the Court’s

13

jurisdiction to protect the federal constitutional rights of the plaintiff.

14

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

16

(3rd Cir. 1996) (rejecting Younger abstention in federal court challenge to state court

17

gag order); Fort Wayne Journal-Gazette, 788 F. Supp. at 382-83 (rejecting Younger

18

abstention in federal court challenge to state court protective order).

19

C.

20
21
22
23
24
25
26
27
28

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
14
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

of the conditions for abstention are met. Potrero Hills, No. 10-15229, at 17317. In

2

this case, none of the conditions are met.
Three conditions must be met before a federal court may even consider a

3
4

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

7

the controversy; and (3) the possibly determinative issue of state law is doubtful.

8

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
10

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.

16

Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010).
Nor are the second and third Pullman factors present. There is no uncertain

17
18

question of state law that can resolve this case. Indeed, the California Supreme Court

19

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

21

Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1181, 1197-1226 &

22

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

24
25

11

26

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.

27

12

28

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.
15
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

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

4

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

14

Conceding as he must that the First Amendment and common law both provide

10
11
12

15

a right of access to civil court records and that such access must be timely, Def’s

16

Memorandum, at 18, Defendant nevertheless asks this Court to dismiss Courthouse

17

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

20

“guarantee” a right of same-day access to new civil complaints. As explained below,

21

Defendant’s motion to dismiss these claims is not well taken and should be denied for

22

at least two separate and independent reasons.

23

A.

24
25

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

26

First Amendment and the common law right of access not just from the denial of

27

same-day access in particular, but also because of delays in access in general – delays

28
16
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

that, as set forth in the Complaint, commonly last for multiple days or weeks and have

2

recently stretched up to 34 calendar days. Complaint, ¶¶ 29, 30.13
So long as a complaint contains “sufficient factual matter to state a facially

3
4

plausible claim to relief,” dismissal under Federal Rule of Civil Procedure 12(b)(6) is

5

‘“proper only where there is no cognizable legal theory.’” Shroyer v. New Cingular

6

Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. Block,

7

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

9

relief, not limited by the request in the complaint, can be granted.” Doe v. United

10

States Dep’t of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985) (quoting Norwalk Core

11

v. Norwalk Redevelopment Agency, 395 F.2d 920, 925-26 (2d Cir. 1968)). Accord,

12

e.g., Massey v. Banning Unified School Dist., 256 F. Supp. 2d 1090, 1092 (C.D. Cal.

13

2003) (“‘It need not appear that plaintiff can obtain the specific relief demanded as

14

long as the court can ascertain from the face of the complaint that some relief can be

15

granted.’”) (quoting Doe, 753 F.2d at 1104).
As Courthouse News will demonstrate as this case proceeds, under the

16
17

particular facts and circumstances of this case, it is entitled to injunctive and

18

declaratory relief that would require Defendant to refrain from his policy of denying

19

its reporter, who visits Ventura Superior at the end of each court day for the specific

20

purpose of viewing newly filed unlimited civil complaints, with access at the end of

21

each court day to the approximately 15 unlimited civil complaints that are filed each

22

day with that court. However, the Complaint is not so limited. As such, Defendant is

23

not entitled to dismissal.

24
25
13

26
27
28

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.
17

PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

3

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)

4

Determining whether there has been a violation of the First Amendment and/or

1

B.

2

5

common law right of access involves a two-step process. The first step is to determine

6

whether a right of access attaches in the first instance. In the case of the First

7

Amendment right of access, courts use the two-prong inquiry first employed by the

8

Supreme Court in Richmond Newspapers, which examines the considerations of

9

“tradition” and “logic” to determine whether a constitutional right of access exists.

10

448 U.S. at 564-76; accord, e.g., Press-Enterprise II, 478 U.S. at 8-10. In the case of

11

the common law right of access, in the Ninth Circuit, the right has been recognized as

12

applying to all court files except for that very narrow range of records that, for policy

13

reasons, have “traditionally been kept secret.” Kamakana v. City & County of

14

Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Times Mirror Co v. United States, 873

15

F.2d 1210 (9th Cir. 1989).
Once it is determined that the First Amendment and common law right of

16
17

access attach to a particular document or class of documents – in this case, unlimited

18

jurisdiction civil complaints filed in a state court – the inquiry shifts to whether the

19

party seeking to restrict access can do so. In order to deny access, the strict standards

20

for overcoming that right of access, as set forth in section I(A) above, must be met.14

21

The same scrutiny is applied where a court seeks to deny access temporarily; as

22
23
24
25
26
27
28

14

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.
18
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

numerous state and federal courts have previously recognized, all but de minimis

2

delays in access are the functional equivalent of access denials. E.g., Associated

3

Press, 705 F.2d at 1147 (district court’s withholding of newly filed documents for 48

4

hours after filing as part of a procedure designed to protect the defendant’s Sixth

5

Amendment right to a fair trial was “a total restraint on the public’s first amendment

6

right of access even though the restraint is limited in time”); Globe Newspaper Co. v.

7

Pokaski, 868 F.2d 497, 507 (1st Cir. 1989) (“even a one to two day delay

8

impermissibly burdens the First Amendment”); Jackson, 2009 U.S. Dist. LEXIS

9

62300, at *11 (“the 24 to 72 hour delay in access is effectively an access denial and is,

10

therefore, unconstitutional”); NBC Subsidiary, 20 Cal. 4th at 1220 & n.42 (even

11

temporary denials of access warrant “exacting First Amendment scrutiny”); In re

12

Estate of Hearst, 67 Cal. App. 3d 777, 785, 136 Cal. Rptr. 821 (1977) (even

13

temporary limitations on public access to court records require a “sufficiently strong

14

showing of necessity”).
Defendant conflates this two-part analysis by denying the existence of any

15
16

“First Amendment” right of “same day access.” Having conceded the First

17

Amendment right of access to civil records, the extent to which access may be

18

temporarily denied is an issue for the second part of the analysis. But Defendant

19

disclaims any need to perform that second part of the analysis at all. Such an end run

20

around the First Amendment is not permitted, and does not support dismissal.

21

C.

22
23
24
25
26
27
28

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
19
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

provided examples of some, but not all, of the state and federal courts around the

2

nation that have traditionally and continue to provide reporters who visit each court

3

day with access to newly filed cases at the end of the court day on which they are

4

filed. In an effort to avoid this reality, Defendant characterizes these access practices

5

as mere “courtesies” and takes issue with what he refers to as a “deficient sampling,”

6

arguing that this “does not constitute a ‘tradition’ of anything, much less warrant

7

imposition of a right to ‘same-day access.’” Def’s Memorandum, at 21. Setting aside

8

the fact that for the purposes of this motion, the allegations in the Complaint must be

9

taken as true, Courthouse News has two main responses.

10

First, the tradition of daily, same-day access that Courthouse News describes

11

has not occurred in a vacuum. Quite appropriately, it is one that has developed in

12

those courts that reporters from various media outlets actually visit on a daily basis to

13

review the new civil actions. For the purposes of the Complaint and Access

14

Summary, Courthouse News focused only on those larger courts that its reporters visit

15

on a daily basis.

16

Second, while some courts have, in recent years, imposed administrative tasks

17

between the filing of a new complaint and its being made available to the press that

18

have resulted in delays in access, many courts still do provide this same-day access.

19

Moreover, the fact that delays in access have recently become a problem in some

20

courts does not change the historical provision of same-day access to reporters who

21

visit the court every day, a tradition that Courthouse News has been able to observe

22

firsthand throughout its twenty-one year history. Complaint, ¶¶ 10, 14.

23

Defendant’s suggestion that same-day courts are predominantly e-filing

24

courts is wrong – Defendant also complains that many of the courts providing same-

25

day access “employ e-filing systems that dramatically reduce the processing burdens

26

on clerk office staff,” suggesting that because Ventura Superior is not an e-filing

27

court, this somehow excuses the access delays occurring at his court. Def’s

28

Memorandum, at 9-10, 21. There are two problems with this. First, Defendant
20
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

misstates the facts. While federal courts are indeed e-filing courts, in many of those

2

courts – including this Court and the Northern District of California – the case-

3

initiating document, i.e., the complaint, is filed in paper form. See Complaint, ¶ 11 &

4

Exh. 1. Similarly, there are numerous examples of state courts, both in California and

5

throughout the nation, that provide same-day access to new complaints that are not e-

6

filed but are rather filed in the traditional paper form. In California, these superior

7

courts include the San Francisco, Los Angeles, Alameda, Santa Clara, Contra Costa,

8

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

9
10

delays. Courthouse News has observed that in many instances, e-filing has led to

11

access delays where none existed before. See Complaint, ¶ 13 & Exh. 1 (describing

12

the delays in access that followed mandatory e-filing at the Eighth Judicial District

13

Court in Las Vegas, Nevada).

14

Edwards does not entitle Ventura Superior to continue its practice of

15

delayed access – Contrary to Defendant’s suggestion, United States v. Edwards, 823

16

F.2d 111 (5th Cir. 1987), does not stand for the proposition, as he alleges, that there is

17

“no recognized right of ‘same day access’” to court records. Rather, in Edwards, the

18

Fifth Circuit held that the trial court did not err, under the facts and circumstances in

19

that particular case, in delaying release of closed hearing transcripts concerning juror

20

misconduct until after the jury had reached its verdict. In Edwards, a criminal trial

21

was underway and the Court was forced to weigh the First Amendment interests at

22

stake with the “paramount interest in maintaining an impartial jury and its inherent

23

vulnerability.” Id. at 119. Here, there is no “paramount” interest in delaying access

24

that even approaches the interest in protecting an impartial jury, and the Sixth

25
26
27
28

15

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.
21
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

Amendment rights of a defendant, and even assuming arguendo that Defendant were

2

to attempt to articulate such an interest, that inquiry is the second part of the First

3

Amendment and common law analysis and would not support dismissal under Rule

4

12(b)(6).

5

The differences between Edwards and the present situation are further

6

confirmed by the Southern District of Texas’ discussion of that case in Jackson.

7

Distinguishing Edwards, the Southern District explained:
Defendants attempt to analogize the 24 to 72 hour delay in access

8
9

in this case to the district court’s refusal to release transcripts of closed

10

proceedings prior to the jury verdict in Edwards. In Edwards, the Fifth

11

Circuit held that the district court did not err in its decision because it

12

reasonably restricted access given the paramount interest in maintaining

13

an impartial jury. ... The Fifth Circuit went on to state that the trial court

14

should avoid unnecessary delay in releasing the record of closed

15

proceedings following the trial. Id. The Court is unpersuaded by

16

Defendants’ argument and finds that the delay in access to newly-filed

17

petitions in this case is not a reasonable limitation on access.

18

Jackson, 2009 U.S. Dist. LEXIS 62300, at *12-13 (2009).

19

The press has a legitimate interest in timely access to new civil case filings –

20

Defendant contends that the press and public do not have legitimate interest in timely

21

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”).

24

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,

27

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,
22
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

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

4

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

6

courts.”).

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

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).

22
23
24
25
26
27
28

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
23
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)

1

First and Second Causes of Action for violations of the First Amendment and

2

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.

5

Date: October 31, 2011

HOLME ROBERTS & OWEN LLP
RACHEL MATTEO-BOEHM
DAVID GREENE
LEILA KNOX

6
7
8

By:

9
10
11

/s/ Rachel Matteo-Boehm
Rachel Matteo-Boehm
Attorneys for Plaintiff

COURTHOUSE NEWS SERVICE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24
PLAINTIFF COURTHOUSE NEWS SERVICE’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75371 v1 saf

Case No. CV11-08083R (MANx)