Courthouse News Service v. Michael Planet

Filing 27

REPLY in Support of MOTION for Preliminary Injunction #3 filed by Plaintiff Courthouse News Service. (Matteo-Boehm, Rachel)

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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

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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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REPLY BRIEF OF COURTHOUSE
NEWS SERVICE IN SUPPORT OF
MOTION FOR PRELIMINARY
INJUNCTION
Date:
Nov. 21, 2011
Time:
10:00 am
Courtroom: G-8 (2nd Floor)
Judge: The Hon. Manuel L. Real

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TABLE OF CONTENTS

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Page
INTRODUCTION ..........................................................................................................1

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RESPONSE TO DEFENDANT’S STATEMENT OF FACTS .....................................2

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A. Courthouse News Does Not Dispute That Ventura Superior Is
Short-Staffed And Facing Serious Budget Difficulties, But
Courthouse News Is Not Asking Defendant Or His Staff To Work
Faster Or Spend Money...................................................................................2

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B.

Not Only Does Ventura Superior Bar Access Until After Processing,
But Courthouse News Cannot See New Complaints Until After They
Have Been “Approved For Public Viewing” ..................................................3

C.

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Defendant’s After-The-Fact And Erroneous Analysis Of Delays
Based Solely On Computer Records Is Insufficient To Rebut The
Delays In Access Courthouse News’ Reporter Personally Observed And
Experienced .....................................................................................................4

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D. Defendant’s Focus On E-Filing Is A Red Herring..........................................5

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I.

DEFENDANT MUST BE PRELIMINARILY ENJOINED FROM
ENFORCING HIS POLICY OF DENYING COURTHOUSE NEWS
SERVICE ACCESS TO NEW CIVIL UNLIMITED COMPLAINTS
UNTIL AFTER THE COMPLAINTS HAVE BEEN FULLY PROCESSED ......8
A. Courthouse News Seeks Only To Preliminarily Enjoin Defendant
From Enforcing His Rule That Treats Court Records As Non-Public
Until They Have Been Fully Processed; This Is A Prohibitory
Injunction.........................................................................................................8

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B.

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Courthouse News Has Satisfied Each Of The Four Requirements
For A Preliminary Injunction ........................................................................10
1.

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Courthouse News Has Shown A Likelihood Of Success On The
Merits, Or At Least Raised Serious Questions, Because Defendant
Has Not Met His Burden To Satisfy The First Amendments’
Stringent Test For Justifying Even Temporary Denials Of Access ......11

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a.

The Public Has A First Amendment Right Of Access To
Civil Complaints ............................................................................11

b.

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Defendant’s Justifications For His Current Policy Of Denying
Access Until After Processing Has Been Completed Are Wholly
Insufficient To Satisfy The Strict Three-Part First Amendment
Test.................................................................................................14

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2.

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Absent Injunctive Relief, Courthouse News Will Be Irreparably
Harmed...................................................................................................18

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a.

Denial Of The First Amendment Right Of Access To Court
Records, For Even Minimal Times, Constitutes Irreparable
Injury That Supports The Issuance Of A Preliminary
Injunction .......................................................................................18

b.

Courthouse News Will Also Suffer Non-Constitutional Harm
If the Preliminary Injunction is Not Granted .................................21

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3.

The Balance Of Equities Tips In Favor Of Courthouse News ..............21

4.

The Preliminary Injunction Will Serve The Public Interest..................22

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III. THERE IS NO BASIS FOR DEFENDANT’S REQUEST THAT THIS
COURT REQUIRE A “SIZEABLE BOND” .......................................................23

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CONCLUSION.............................................................................................................24

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TABLE OF AUTHORITIES

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Page(s)

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FEDERAL CASES

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Alliance For The Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011) .................................................................................11
Associated Press v. District Court,
705 F.2d 1143 (9th Cir. 1983) .................................................................................12
Barahona-Gomez v. Reno,
167 F.3d 1228 (9th Cir. 1985) .................................................................................23
Blanco v. American Academy of Forensic Sciences,
2010 U.S. Dist. LEXIS 20698 (9th Cir. 2010) ........................................................10
Cal-Almond, Inc. v. U. S. Department of Agriculture,
960 F.2d 105 (9th Cir. 1992) ...................................................................................20

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Cal. ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency,
766 F.2d 1319 (9th Cir. 1985) .................................................................................23

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California Pharmacists Association v. Maxwell-Jolly,
563 F.3d 847 (9th Cir. 2009) ...................................................................................21

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In re Charlotte Observer,
882 F.2d 850 (4th Cir. 1989) ...................................................................................12

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Colorado River Indian Tribes v. Town of Parker,
776 F.2d 846 (9th Cir. 1985) ...................................................................................21
Courthouse News Service v. Jackson,
2009 U.S. Dist. LEXIS 62300, 38 Media L. Rep. 1890 (S.D. Tex. 2009).......20, 22
Dahl v. HEM Pharmaceuticals Corp.,
7 F.3d 1399 (9th Cir. 1993) .......................................................................................9
Detroit Free Press v. Ashcroft,
303 F.3d 681 (6th Cir. 2002) ...................................................................................20
Elrod v. Burns,
427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) .........................................19
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Gilder v. PGA Tour,
936 F.2d 417 (9th Cir. 1991) ...................................................................................18

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Globe Newspaper Co. v. Pokaski,
868 F.2d 497 (1st Cir. 1989)....................................................................................13

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Globe Newspaper Co. v. Superior Court,
457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) .......................................19

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Hartford Courant Co. v. Pellegrino,
380 F.3d 83 (2d Cir. 2004) .....................................................................................20

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Houchins v. KQED,
438 U.S. 1 (1978)....................................................................................................20
Huminski v. Corsones,
386 F.3d 116 (2d Cir. 2004) ...................................................................................20
Leucadia, Inc. v. Applied Extrusion Techs., Inc.,
998 F.2d 157 (3d Cir. 1993) ...................................................................................15
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
571 F.3d 873 (9th Cir. 2009) .....................................................................................9
Mastrovincenzo v. City of New York,
435 F.3d 78 (2d Cir. 2006) .......................................................................................9
New York Civil Liberties Union v. New York City Transit Authority,
652 F.3d 247 (2d Cir. 2011) ...................................................................................20
Phoenix Newspapers, Inc. v. United States District Court,
156 F.3d 940 (9th Cir. 1998) ...................................................................................12
Press-Enterprise Co v. Superior Court, (“Press-Enterprise I”)
464 U.S. 501 (1984)................................................................................................14
Press-Enterprise Co. v. Superior Court, (“Press-Enterprise II”)
478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) .........................................13, 20
Publicker Industrial, Inc. v. Cohen,
733 F.2d 1059 (3d Cir. 1984) .................................................................................20

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Richmond Newspapers v. Virginia,
448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) .........11, 13, 18, 19, 20, 22

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Rivera-Puig v. Garcia-Rosario,
983 F.2d 311 (1st Cir. 1992)....................................................................................20

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Rocky Mt. Bank v. Google,
2011 U.S. App. LEXIS 7867, 39 Media L. Rep. 1783 (9th Cir. 2011)...................15

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Stuhlbarg International Sales Co. v. John D. Brush & Co.,
240 F.3d 832 (9th Cir. 2001) ...................................................................................21

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United States v. Brooklier,
685 F.2d 1162 (9th Cir. 1982) .................................................................................12
Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008) ...........................................10

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STATE CASES
Estate of Hearst,
67 Cal. App. 3d 777, 136 Cal. Rptr. 821 (1977) ....................................................13
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
20 Cal. 4th 1178, 86 Cal. Rptr. 2d 778 (1999) ..................................................13, 24
In re NVIDIA,
2008 WL. 1859067 (N.D. Cal. 2008) .....................................................................17

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STATE STATUTES
Cal. Gov’t Code § 68150(l) ..........................................................................................13
Cal. Penal Code § 868...................................................................................................13

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INTRODUCTION

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At bottom, Defendant’s opposition is based on little more than a faulty premise:
that processing must precede access to court records.
Although Courthouse News disputes Defendant’s erroneous assessment of the

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extent of the delays in access at Ventura Superior, it does not deny that Ventura

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Superior is experiencing serious budget shortfalls, or that those shortfalls have led to

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staffing shortages and other challenges that may delay the processing of new

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complaints. But whether Defendant has established good cause for those processing

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delays is not the question before this Court. Courthouse News is not asking

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Defendant to spend money on extra staff for processing, or for his already-busy staff

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to process new complaints any faster. All that Courthouse News is seeking is a

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preliminary injunction directing Defendant to cease his practice of not allowing

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Courthouse News’ reporter to see the less than ten new unlimited jurisdiction

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complaints that are filed each day until after they have been fully processed, thereby

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allowing same-day access to these public records and bringing Ventura Superior in

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line with the many other state and federal courts across the nation that provide same-

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day access to new complaints before full processing. Indeed, the failure of

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Defendant’s premise is evident from the fact that many of these other courts are facing

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staffing and budget difficulties of their own, but nevertheless do not require reporters

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who visit the court every day to wait to see new complaints until after those courts

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have finished the full range of administrative tasks associated with processing.

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Defendant cannot justify the delays in access at his court in light of the

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presumptive First Amendment right of access to civil court complaints, or even under

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the common law right of access. Courthouse News has thus shown a likelihood of

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success on the merits sufficient to warrant injunctive relief and, as set forth below, has

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satisfied the other factors that must be considered by this Court as well. Accordingly,

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this Court should issue a preliminary injunction to prevent the continued deprivation

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of timely access to public court documents as this case proceeds.
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RESPONSE TO DEFENDANT’S STATEMENT OF FACTS

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A response to certain factual matters set forth in Defendant’s opposition papers

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is necessary before proceeding to the merits of his arguments against Courthouse
News’ request for injunctive relief.

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Courthouse News Does Not Dispute That Ventura Superior Is ShortStaffed And Facing Serious Budget Difficulties, But Courthouse News Is
Not Asking Defendant Or His Staff To Work Faster Or Spend Money

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Defendant devotes much of his opposition and supporting papers to a discussion

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A.

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of the staffing and budget difficulties his Court is facing. But as explained in

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Courthouse News’ opening papers, Courthouse News is not asking Defendant or his

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staff to process records any faster or to spend more money by hiring additional staff.

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All that Courthouse News is seeking is a preliminary injunction order requiring

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Defendant to cease his practice of denying Courthouse News’ reporter, who visits

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Ventura Superior on a daily basis to review the newly filed unlimited jurisdiction

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complaints, with access to those complaints until after full processing. With that

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barrier removed, Courthouse News will have same-day access to these complaints, as

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is customary in other courts for reporters who visit every day for the purpose of

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reviewing new civil filings.1

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Accordingly, while Courthouse News appreciates the staffing and budget

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difficulties that Ventura Superior is undoubtedly facing, and does not dispute that

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these difficulties are affecting Ventura Superior’s ability to process new filings in a

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In his opposition, Defendant accuses Courthouse News of being “incredibly
misleading” for purportedly suggesting that his staff “need ‘only’ process ‘fewer than
eight complaints per court day.’” Opp. at 2. Courthouse News suggested no such
thing. The portion of Courthouse News’ opening papers that Defendant complains
about notes only that during the four-week tracking period it used to measure delays in
access, Courthouse News’ reporter reviewed 152 new unlimited jurisdiction
complaints, “on average fewer than eight complaints per court day.” Courthouse
News’ MPA, at 6. Courthouse News does not dispute that the staff at Ventura
Superior processes large amounts of court records, just as other courts do.
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timely manner, those difficulties are largely irrelevant to the preliminary injunction

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that Courthouse News seeks.

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B.

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Not Only Does Ventura Superior Bar Access Until After Processing, But
Courthouse News Cannot See New Complaints Until After They Have
Been “Approved For Public Viewing”

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Through the Declaration of Cheryl Kanatzar (“Kanatzar Decl.”), on which

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Defendant relies for much of the evidentiary support for his opposition, Defendant
acknowledges that not only does his court not “grant access to ‘partially processed’
complaints,” but indeed, that he does not provide access until after a complaint has
been both “processed” and “approved for public viewing.” Kanatzar Decl., ¶¶ 21, 35.
In addition, although Courthouse News had earlier estimated that an average of

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fifteen new unlimited jurisdiction complaints are filed each day, Sept. 28, 2011
Declaration of Julianna Krolak (“Krolak Decl.”), ¶ 10, according to Defendant, that
number is even lower – less than ten unlimited jurisdiction complaints are filed each
day.2 Before Courthouse News’ reporter can view those complaints, however, they

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According to paragraph 14 of the Kanatzar Declaration, Ventura Superior “receives
approximately 8 civil unlimited complaints ... on a daily basis.” However, in an email
from Court Program Manager Julie Camacho attached as Exhibit H to the Kanatzar
Declaration, Ms. Camacho states that the court receives “on average 6” unlimited
complaints each day. Most of these complaints are “dropped off” in paper form at the
public filing windows and processed by “back counter” Court Processing Assistants
(“CPAs”), who are responsible for opening a new file, issuing a case number and
providing conformed copies to counsel. Kanatzar Decl., ¶¶ 15, 16. In addition, some
complaints (1) are placed in drop boxes located near the clerk’s office in the same
building, where civil filings can be placed prior to 5:00 p.m., (2) faxed or emailed to
the court, in which case the CPA generates a printout of the document, (3) delivered
by messengers in bulk to unattended “Window 14,” or (4) arrive by mail. Id., ¶¶ 4,
13, 31. The fact that there are several entry points for new complaints is typical for
state trial courts. Supplemental Declaration of William Girdner (“Supp. Girdner
Decl.”), ¶ 17. In any event, at Ventura Superior, none of these entry points are very
far away from each other. Supplemental Declaration of Julianna Krolak (“Supp.
Krolak Decl.”), ¶ 12.
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must be processed by Court Processing Assistants (“CPAs”), after which time they are

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“approved for public viewing.” In the case of “newly appointed” CPAs, their

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processing is subject to a “quality control review” (i.e., a double checking process)

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performed by supervisor, Ms. Martha McLaughlin, who looks for any errors in

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processing and, if errors are found, returns them back to the newly hired CPA, who

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then corrects the errors and resubmits the file to the supervisor for approval. This

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process can “take from one to several days.”3 Kanatzar Decl., ¶¶ 34-35.

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C.

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Defendant also disputes the extent of the delays in access at his court, claiming
on the basis of an after-the-fact computer analysis performed by his Court Program
Manager, Julie Camacho, that Courthouse News’ reporter Julianna Krolak had sameday access to many more complaints than what she actually saw on a same-day basis
during the tracking exercise described in her opening declaration, and that many other
complaints were available “the day after receipt,” again contrary to what Ms. Krolak
actually experienced.4

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Defendant’s After-The-Fact And Erroneous Analysis Of Delays Based
Solely On Computer Records Is Insufficient To Rebut The Delays In
Access Courthouse News’ Reporter Personally Observed And Experienced

In so doing, Defendant is employing a tactic that is all too common in those
courts where Courthouse News has experienced delays – outright denial that they exist
at all, or an argument that they are not so bad as what Courthouse News is reporting.
In most instances, these discrepancies stem from a failure of on-the-ground court staff

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Defendant employs fourteen CPAs, including one hired in August 2011. Kanatzar
Decl., ¶¶ 6, 29. However, Ms. Kanatzar does not specify how many CPAs are
considered to be “newly appointed” such that the complaints they process are subject
to the “quality control” process described in paragraph 34 of her declaration.
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Ms. Camacho does not specify whether her references to the “day after receipt” refer
to calendar days or court days. To the extent they refer to court days, even by
Defendant’s own accounting, the “day after receipt” could mean actual delays that are
much longer, given intervening weekends and court holidays.
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to actually carry out access practices that are supposed to be in place. In this case, Ms.

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Krolak has, on many occasions, requested to see complaints that, according to Ventura

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Superior’s California Court Case Management System (“CCMS”), should have

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already been placed in the media bin, but in fact were not in the media bin and were

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not available for review. Similarly, Ms. Krolak has on several occasions requested to

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see complaints that, according to CCMS, were supposed to be on the shelves but were

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in fact not on the shelves and thus similarly not available for review. Supplemental

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Declaration of Julianna Krolak (“Supp. Krolak Decl.”), at ¶¶ 8-10. Thus, by

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Courthouse News’ own experience, the information that Defendant relies on for his

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assessment of access delays – the CCMS “location history” screen – does not always

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accurately reflect the actual location of Ventura Superior’s records.
Defendant’s assertion of what his computer records show is not an adequate

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basis to contradict the contemporaneous tracking exercise Ms. Krolak personally

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performed and described in her September 28, 2011 declaration. Krolak Decl., ¶¶ 12-

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13. Nowhere in Ms. Camacho’s declaration does she state that she personally placed

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any of the complaints that were the basis of her analysis in the media bin or otherwise

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verified that particular complaints were in fact placed in the media bin on a particular

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date. As such, she has no personal knowledge of when a particular complaint was

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actually put in the bin and made available to Ms. Krolak. In contrast, Ms. Krolak’s

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tracking exercise was based on her firsthand knowledge of what she personally saw

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and experienced on her daily visits to Ventura Superior – i.e., it was based entirely on

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the on-the-ground reality of what was occurring. Krolak Decl., ¶¶ 12-13; see also

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Supp. Krolak Decl., ¶¶ 2-7. Given all of this, Defendant’s assertions that the delays

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reported by Courthouse News “conflict in every way with what the actual data

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shows,” Opp. at 5, cannot be credited.

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D.

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Defendant’s Focus On E-Filing Is A Red Herring
Defendant insists that his court is different from other courts that provide same-

day access because Ventura Superior is not an e-filing court and is thus “burdened by
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the substantial administrative task imposed by the need to process by hand every

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document filed with the court.” Opp. at 2. There are several responses to this.

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First, Defendant suggests that the lack of e-filing at Ventura Superior means his

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staff faces burdens associated with the need to “process by hand every document filed

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with the court” above and beyond those faced by other courts. Opp. at 2. But the fact

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is that many state courts in California and around the country do not have e-filing

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programs, or only have them for limited case types, and thus similarly “process by

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hand” every or almost every document filed with the court. Indeed, e-filing is a

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relatively new invention. For most of the twenty-one years that Courthouse News has

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been in existence, courts have processed documents “by hand” and have still managed

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to ensure that news reporters who visit every day have access to the newly filed

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complaints at the end of the day. See Sept. 27, 2011 Declaration of William Girdner

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(“Girdner Decl.”), ¶ 13 & Exh. 3; Supplemental Declaration of William Girdner

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(“Supp. Girdner Decl.”), ¶¶ 12-14.

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Second, numerous courts that do not have e-filing programs, or only have e-

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filing programs for limited case types, currently provide reporters who visit every day

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with same-day access to new complaints. In California, these courts include, but are

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not limited to, the superior courts for the counties of Los Angeles, San Francisco,

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Santa Clara, Alameda, Contra Costa, and Riverside. In all of these courts, all or most

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of the court filings are, as in Ventura, processed “by hand.” The same is true for many

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other state courts across the country. Girdner Decl., ¶¶ 13-14, 16 & Exh. 3; Supp.

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Girdner Decl., ¶¶ 12-14.

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Third, even though federal district courts have largely converted to e-filing,

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many of these courts, including the Northern and Central Districts of California,

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continue to require case-initiating documents such as complaints to be filed in

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traditional paper form. Girdner Decl., ¶¶ 13, 15 & Exh. 3; Supp. Girdner Decl., ¶ 15.

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Fourth, far from improving timeliness of access, e-filing and other electronic
technologies often bring with them delays in access, because courts often make e-filed
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documents available only after various administrative tasks have been completed or

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after information has been entered into complex electronic case management systems.

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For example, at the Orange County Superior Court, which like Ventura Superior now

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uses CCMS and in addition has an e-filing program provided by a private vendor,

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access to new complaints has been delayed by these electronic technologies, and

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complex commercial cases, which are required to be e-filed, take even longer on

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average to be made available for review than paper-filed complaints.5 Supp. Girdner

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Decl., ¶¶ 8, 10. Similarly, at the Eighth Judicial District Court in Las Vegas, reporters

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saw the majority of new civil complaints on a same-day basis until the court switched

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to mandatory e-filing. Following that switch, the court began requiring reporters to

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review new complaints at computer terminals, but this system resulted in complaints

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not being available for viewing until the day after filing, due to the fact that

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complaints did not appear on the terminals until after they had been “accepted” by the

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clerk’s office, and only after the terminals had been updated to reflect the new filings.6

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Consistent same-day access to new civil complaints used to be the rule in Orange
County. In the past, a box with new complaints was delivered to reporters near the
end of each court day so that they could review the complaints and, once finished,
return them to court staff. The Los Angeles Times, the Orange County Register, and
the Daily Journal all checked the new filings, as did Courthouse News. Today, the
exclusive means of reviewing new complaints is on computer terminals, where
reporters view scanned versions of paper-filed complaints and e-filed complaints after
court staff has posted them for public viewing. Most unlimited civil complaints are
not made available until at least one court day after filing, and many are delayed
longer, with e-filed complex complaints taking longer on average to be made available
than paper-filed complaints. Orange County is thus a prime example not only of the
tradition of same-day access, but the recent erosion of that tradition in some courts
prompted in large part by the very electronic technologies Defendant suggests are
needed to provide timely media access. Supp. Girdner Decl., ¶¶ 8-10.
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After Courthouse News brought these delays to the attention of the court, the court
adopted a new system: an electronic in-box feature at public access terminals at the
courthouse through which reporters see exactly what the clerk’s office sees as new
complaints flow in throughout the day. Complaints can be viewed as soon as they
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Case No. CV11-08083R (MANx)

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Girdner Decl., ¶ 13 & Exh. 3; Sept. 28, 2011 Declaration of Christopher Marshall

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(“Marshall Decl.”), ¶ 6; Supp. Girdner Decl., ¶ 11.

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I.
DEFENDANT MUST BE PRELIMINARILY ENJOINED FROM ENFORCING
HIS POLICY OF DENYING COURTHOUSE NEWS SERVICE ACCESS TO
NEW CIVIL UNLIMITED COMPLAINTS UNTIL AFTER THE
COMPLAINTS HAVE BEEN FULLY PROCESSED

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As set forth in Courthouse News’ opening memorandum, this Court should

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issue the requested preliminary injunction barring Defendant from enforcing his

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policy that newly filed complaints are not public documents, subject to review by

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Courthouse News and others, until after such records have been fully processed and in

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some cases subject to a further quality control review. Courthouse News has satisfied

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all of the requirements for this preliminary injunction to issue.

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A.

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Courthouse News Seeks Only To Preliminarily Enjoin Defendant From
Enforcing His Rule That Treats Court Records As Non-Public Until They
Have Been Fully Processed; This Is A Prohibitory Injunction

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The parties dispute whether the preliminary injunction is “prohibitory,” that is

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whether it will prohibit Defendants from acting, or whether it is “mandatory,” that is,

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it would require Defendant to take certain action. To the extent these labels even

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matter – Courthouse News is entitled to the preliminary injunction even under a

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heightened standard – the preliminary injunction Courthouse News seeks is

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prohibitory.

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The same four-part test applies regardless of whether the requested preliminary
injunction is deemed “prohibitory” or “mandatory.” The only difference in the

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cross the electronic equivalent of the intake counter at the clerk’s office, even if court
staff has not yet reviewed, processed, and/or manually uploaded the complaint for
electronic viewing. Girdner Decl., ¶ 13 & Exh. 3; Marshall Decl., ¶ 6. Notably, a
return to same-day access was achieved by that court in a manner that mirrors the
preliminary injunctive relief Courthouse News is seeking in this case: the court simply
ceased requiring Courthouse News to wait to see new complaints until after clerk’s
office staff had completed certain processing tasks.
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analysis is that a truly mandatory preliminary injunction should not be granted “unless

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the facts and law clearly favor the moving party.” Dahl v. HEM Pharmaceuticals

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Corp., 7 F.3d 1399, 1403 (9th Cir. 1993) (affirming the grant of a mandatory

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preliminary injunction). But mandatory injunctions remain appropriate where

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“extreme or very serious damage will result.” See Marlyn Nutraceuticals, Inc. v.

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Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009).

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Mandatory injunctions are disfavored because they are difficult to undo.

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Mastrovincenzo v. City of New York, 435 F.3d 78, 90 (2d Cir. 2006). Thus, and

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because the distinction between prohibitory and mandatory injunctions, as well as

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determining what is the “status quo,” is largely a matter of semantics, a court

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distinguishing between the two should focus on whether it will be difficult to reverse

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the effects of the injunctive relief. Id. For this reason, an injunction that merely

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prevents the government from enforcing an unlawful policy is seen as prohibitory.

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See id. at 90. Such injunctions are easily undone: the agency can just go back to

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applying its policy should it defeat the lawsuit.

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As Defendant’s opposition makes clear, there is only one obstacle to Defendant

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providing Courthouse News and others with same-day access to newly filed civil

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complaints: his policy that filed records must be “processed, filed and approved for

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public viewing.” Kanatzar Decl., ¶ 35. See also Girdner Decl., ¶ 26 & Exh. 7

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(Defendant stating policy that records are not approved for public viewing “until the

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requisite processing is completed.”). Absent the processing-before-access

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requirement, the records would be available to the press and the public regardless of

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how many employees the court had available to perform the processing. That is, the

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records would be accessible while they were awaiting such processing.

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The preliminary injunction simply seeks to bar Defendant from enforcing this
processing-before-access policy, an assertion of its claimed authority to “approve

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records for public viewing.”7 Should Defendant ultimately win this lawsuit, he can

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resume his policy of denying access until such processing is completed. As such,

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there is no reason to apply a heightened standard.
Defendant’s arguments to the contrary are without merit. As Defendant notes, a

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prohibitory injunction is seen as preserving the last uncontested status quo. Opp. at

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11. The key words are “last uncontested.” See Blanco v. American Acad. of Forensic

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Sciences, 2010 U.S. Dist. LEXIS 20698, *5 (9th Cir. 2010) (“Although issuing such an

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order would technically require an affirmative act on the part of defendant, it would

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arguably not upset the status quo between the two parties, because their relationship

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would simply be returned to its pre-conflict state for the duration of these

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proceedings.”). Defendant’s processing-before-access policy, and the denial by the

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court of same-day access, has always been contested by Courthouse News. If it is true

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that Ventura Superior has “never” granted access “to partially processed complaints,”

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there is no uncontested position – no status quo – to which to return. However, the

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preliminary injunction would “return” the parties to the historical position in which

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the press was routinely granted the access that Courthouse News seeks by this action,

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and by which the public enjoys its undisputed First Amendment right of access.

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B.

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As set forth in Courthouse News’ opening memorandum, to obtain a

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Courthouse News Has Satisfied Each Of The Four Requirements For A
Preliminary Injunction

preliminary injunction, the moving party must demonstrate that (1) it is likely to
succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is
in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24-25,
129 S. Ct. 365, 172 L. Ed. 2d 249 (2008).

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Notably, Defendant never cites to the actual preliminary injunction sought, referring
instead to the language of the Complaint and the ultimate relief sought. Opp. at 10.
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Courthouse News has satisfied each requirement.8

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Courthouse News Has Shown A Likelihood Of Success On The Merits, Or
At Least Raised Serious Questions, Because Defendant Has Not Met His
Burden To Satisfy The First Amendment’s Stringent Test For Justifying
Even Temporary Denials Of Access

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Courthouse News has demonstrated that it is highly likely to succeed on the

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merits of this action. Defendant has conceded that the public has a First Amendment

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right of access to civil court records. And Courthouse News has demonstrated that

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Defendant cannot justify denying same-day access to new civil complaints.

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a.

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The Public Has A First Amendment Right Of Access To Civil
Complaints

As set forth in its opening memorandum, the public has a First Amendment

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right of access to civil court records, which necessarily includes complaints.

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Defendant has conceded this point. See Mem. of Points and Authorities In Support of

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Defendant’s Motion to Dismiss, (Docket #21), at 18 (“CNS alleges that it has both a

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constitutional and common law right of access to court records, and that such access

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must be timely. Ventura Superior Court does not dispute either proposition.”).9
That concession is all that is needed for the qualified protection first announced

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in Richmond Newspapers v. Virginia, 448 U.S. 555, 579-81, 100 S. Ct. 2814, 65 L.

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Ed. 2d 973 (1980), to attach. In order to overcome the qualified right of access, and

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permissibly impose delays in access, Defendant must now demonstrate:

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Alternatively, if the moving party can only demonstrate “serious questions going to
the merits,” rather than a “likelihood of success,” the preliminary injunction may issue
nonetheless if the balance of hardships tips sharply toward the movant, so long as
there is a likelihood of irreparable injury and the injunction is in the public interest.
Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
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Courthouse News also will prevail on its common law claim. However, since
Defendant has conceded the First Amendment right of access, Defendant’s failure to
meet the burden necessary to overcome that right is in itself sufficient for the
preliminary injunction Courthouse News seeks.
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(1)

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

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(2)

A substantial probability of irreparable damage to the asserted right will
result if access is not withheld; and

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The existence of a right of comparable importance to the First

(3)

A substantial probability that 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);

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United States v. Brooklier, 685 F.2d 1162, 1168-69 (9th Cir. 1982).

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Defendant, however, attempts to avoid this analysis by framing the “right” of

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access at issue in a far too limited way. According to Defendant, Courthouse News

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can only succeed if it has a First Amendment right of same-day access. Opp. at 12.

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This is not the proper analysis. The temporal characteristics of the denial in

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access are considered in the second part of the analysis, the three-part test for whether

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the First Amendment right can be abridged in a specific situation. It is not part of the

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threshold determination of whether the First Amendment right exists at all. The

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relevant threshold inquiry is not the “tradition” and “logic” of same-day access; it is

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rather the “tradition “ and “logic” of access to a type of document as a general matter.

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Thus, in Associated Press, the Ninth Circuit first analyzed whether or not the

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public had a First Amendment right of access to records filed in the course of criminal

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pre-trial and trial proceedings. Only after it answered that threshold question in the

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affirmative did the Ninth Circuit move on to the second layer of the analysis, that is,

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whether the trial court’s rule delaying access until after a judicial review of each

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record was an acceptable infringement on that right. 705 F.2d at 1146. The Ninth

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Circuit did not look at the public’s “right of same-day access” to such records as a

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threshold question, as Defendant would have this Court do. Other courts that have

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analyzed delays in court access have similarly considered the propriety of the delay in

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the second part of the analysis. See, e.g., In re Charlotte Observer, 882 F.2d 850, 856
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(4th Cir. 1989) (considering whether proposed “minimal delay” was acceptable in light

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of established First Amendment right of access); Globe Newspaper Co. v. Pokaski,

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868 F.2d 497, 507 (1st Cir. 1989) (considering proposed delay in access as part of

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least restrictive means analysis); NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,

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20 Cal. 4th 1178, 1219 & n. 42, 86 Cal. Rptr. 2d 778 (1999) (subjecting a temporary

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sealing of court records to “exacting First Amendment scrutiny”); Estate of Hearst, 67

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Cal. App. 3d 777, 785, 136 Cal. Rptr. 821 (1977) (considering proposed delay in

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access as part of least restrictive means analysis). The “tradition” and “logic” analysis

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presented by Defendant is thus irrelevant.10
Defendant also contends that he need only provide “reasonable” access because

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(1) that is all California law requires, and (2) the Supreme Court acknowledges

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“reasonable limitations” in access in Richmond Newspapers. Opp. at 15-16. As to the

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first point, Cal. Gov’t Code § 68150(l), which requires “reasonable access,” certainly

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cannot operate as a limitation on First Amendment rights. See Press-Enterprise Co. v.

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Superior Court, 478 U.S. 1, 13-14, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (“Press-

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Enterprise II”) (holding that Cal. Penal Code § 868’s allowance of a closed hearing

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upon a showing of reasonable probability of harm must incorporate the more

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demanding standards of the three-part test). As to the second point, the later cases that

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interpreted Richmond Newspapers, working off of the formulation proposed by Justice

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Brennan in his concurrence, articulated the three-part test for the very purpose of

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determining what those reasonable limitations might be.

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One point in Defendant’s “tradition” analysis does bear a response. Defendant
proffers a “Report Card” produced by Courthouse News as evidence of a lack of
tradition of same day access. Opp. at 6. However, that report card was produced to
document the recent deterioration in access, not as an historical overview of access.
See Supp. Girdner Decl. at ¶ 4. For example, Orange County historically provided
same-day access, but now has a bad grade because of the recent deterioration in that
access that appears to be largely due to the introduction of CCMS and e-filing. Id. at
¶¶ 8-10.
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Thus, with the fact of the public’s First Amendment right of access to civil

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complaints established, the question is whether Defendant has met his burden of

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proving that his particular denial of access – denying public access until after

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processing – overcomes the presumption of access.
b.

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Defendant’s Justifications For His Policy Of Denying Access Until
After Full Processing Are Wholly Insufficient To Satisfy The Strict
Three-Part First Amendment Test

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Although the First Amendment right of access is not absolute, it can only be

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overcome in “rare” circumstances and “only for cause shown that outweighs the value
of openness.” Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509 (1984)
(“Press-Enterprise I”). As determined by the three-part test set forth above,
Defendant has not even come close to overcoming this presumptive right.
Beginning at paragraph 30 of her declaration, Ms. Kanatzar lists several reasons

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why, as she puts it “it is not possible to guarantee ‘same-day access’ to newly filed
civil unlimited complaints.” However, this is not a list of reasons why it is not
“possible” to grant same-day access. Rather, it is a list of reasons why the processing
of new complaints may be delayed.11 Only later in her declaration does Ms. Kanatzar
finally assert four interests that purportedly justify Defendant’s processing-beforeaccess rule: (1) safety and security of court personnel; (2) ensuring that financial
information in fee application waivers is kept private; (3) concerns about filing fee

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Among these asserted reasons are (1) the need for newly-filed civil complaints to be
delivered from their various points of entry into the court to the “new filings desk;”
(2) court closures due to budgetary shortfalls; (3) certain other complaints that require
initial approvals from a judicial officer; and (4) the “quality control review” process
the court uses for newly-appointed CPAs. Kanatzar Decl., ¶¶ 31-34. In addition, Ms.
Kanatzar points to the fact that certain complaints are accompanied by TRO requests
that need to go to judicial officers immediately, id. at ¶ 33, but as noted in Courthouse
News’ moving papers, it is not seeking same-day access to these complaints.
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checks; and (4) the possibility that a complaint received for filing might later be

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rejected.12
Even assuming arguendo that these interests would satisfy the first prong of the

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First Amendment test, they do not pass the second or third prongs because for each

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interest raised, there is no substantial probability of irreparable injury and there are

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clear alternatives to Defendant’s policy of denying access until after full processing.
First, Ms. Kanatzar asserts that she cannot let reporters go “behind the counter”

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to review new civil complaints, and that the court’s “current policies prohibit

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members of the general public from accessing processing desks where new unlimited

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civil complaints are maintained prior to processing.” Kanatzar Decl., ¶¶ 35-36. But

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as is demonstrated by examples of access procedures used by other courts, see Girdner

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In the latter part of her declaration, Ms. Kanatzar implies that Courthouse News is
somehow requesting to see new complaints before they have been “filed” with the
court. Kanatzar Decl., ¶¶ 35, 37-40. To the extent Defendant is somehow suggesting
that a document is not “filed” until some undefined point after has been fully
processed by court staff, such suggestions have no merit. The right of access to court
records attaches when those records are submitted to the court for its consideration
and action – an event that has historically been referred to as filing, and sets the
relevant date for determining whether that document has been filed in a timely manner
under the applicable statute of limitations and other laws and rules. Any technical
definition of “filing” that results in the court’s having possession of a document
submitted in the context of the court’s adjudicatory powers but that is categorically
excluded from public access until some undetermined time as court administrators
decide they will make it available for public inspection (even if only for a relatively
short time) is antithetical to principles of access guaranteed by the First Amendment.
See, e.g., Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3d Cir.
1993) (“by submitting pleadings and motions to the court for decision, one ... exposes
oneself [to] public scrutiny”) (quotation omitted); accord Rocky Mt. Bank v. Google,
2011 U.S. App. LEXIS 7867, at *3, 39 Media L. Rep. 1783 (9th Cir. 2011) (common
law right of access applied even though records had been lodged rather than filed;
such documents were judicial records subject to the right of access). Indeed, Ventura
Superior acknowledges this by dating records as having been “filed” on a earlier date
even if the record is not processed until a later date. Kanatzar Decl., ¶¶ 13, 16.
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Decl., ¶ 13 & Exh. 3, while many courts allow reporters to go behind the counter to

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review new complaints, and/or allow reporters to remove complaints directly from the

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desks of intake and processing clerks, there are many ways to provide same-day

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access that do not involve behind-the-counter access or having reporters directly

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access complaints on the desks of processing or intake clerks. For example, numerous

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courts provide same-day access to new complaints by making them available for

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review for a defined window of time at the end of the day, after which time they can

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be sent along for further processing. Sometimes complaints are provided in a box or

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basket; sometimes by some other method. Some courts require the reporter to show or

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leave collateral (such as a driver’s license or press pass); direct that review be

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performed in a designated area; comply with a check-out procedure; or even require

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the reviewing reporter to obtain a security clearance (e.g., a Live-Scan clearance).

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Girdner Decl., ¶¶ 13-16 & Exh. 3; Marshall Decl., ¶¶ 4-6.13
But even if permitting Courthouse News’ reporter to go behind the counter

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and/or directly access processing desks were the only way that same-day access could

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be provided, the justification offered by Ms. Kanatzar is not sufficient to show why

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this would not be “workable.” As tragic as the Employment Development

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Department shooting no doubt was, Ms. Kanatzar fails to offer any specific reason

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why that isolated incident, no doubt involving an extremely deranged person,

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somehow translates into the idea that a credentialed reporter who visits the court on a

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daily basis and has done so for the last ten years is a security risk. Many courts allow

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If Ventura Superior wished, it could further facilitate this process by requiring
complaints to be “dropped” in a designated place to make it even easier to retrieve
them later in the day, or even by requiring parties to file an extra copy of complaints.
Many other variations on this procedure are available as well. Indeed, there are as
many different ways of providing same-day access before full processing as there are
courts. See Girdner Decl., ¶¶ 13-16 & Exh. 3; Marshall Decl., ¶¶ 4-6.
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reporters to go behind the counter and directly access processing desks; if Defendant

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was really concerned, he could require Ms. Krolak to obtain a security clearance.

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Second, Ms. Kanatzar asserts that Ventura Superior’s practice of delaying

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access until after full processing is necessary to ensure the “privacy of litigants.”

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Kanatzar Decl., ¶ 37. But the law is clear that complaints are public documents, and

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“when a plaintiff invokes the Court’s authority by filing a complaint, the public has a

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right to know who is invoking it, and toward what purpose, and in what manner.” In

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re NVIDIA, 2008 WL 1859067, at *3 (N.D. Cal. 2008). As for fee waiver

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applications, these are separate documents and as evidenced by the fact that other

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courts handle fee waivers and yet still provide access prior to full processing, there are

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clearly alternatives for maintaining the confidentiality of these applications that do not

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require access to the complaints to be delayed. Supp. Girdner Decl., ¶¶ 12-13.

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Third, Ms. Kanatzar claims that allowing access to new complaints until after

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they have been fully processed would violate Ventura Superior’s “accounting

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protocols” because filing fee checks are attached to the new complaints until after they

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are processed. Id., ¶ 38. Again, Ventura Superior is not the only court that handles

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such checks, and this has not stopped other courts from providing timely access.

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There are alternatives for addressing this concern short of imposing a no-access-until-

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full-processing policy. The most common of these is to remove checks from

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complaints right away. See Girdner Decl., ¶ 13 & Exh. 3; Supp. Girdner Decl., ¶ 16.

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Fourth, Ms. Kanatzar asserts that Ventura Superior cannot allow access to

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complaints until after they have been fully processed because it is possible a

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complaint might be “rejected” for filing, and allowing access to such complaints

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would not “ensure and promote public trust and confidence in the Court and its

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filings.” Id., ¶ 39. As with Defendant’s other justifications for delayed access,

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Ventura Superior is not the only court that rejects complaints from time to time, and

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yet this has not stopped other courts from providing reporters with access to new

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complaints before they have been fully processed. The reason for this is clear: given
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the importance of the constitutional rights at issue, timely access is appropriate even if

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it occasionally results in a complaint being reviewed by the press that is later rejected.

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Ms. Kanatzar offers no reason why this would erode the “public trust and confidence”

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in the court, and in fact, none exists. Even complaints that are later rejected are public

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records, access to which enables the public to oversee the court’s diligence and

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fairness in accepting complaints. See Richmond Newspapers, 448 U.S. at 572 (noting

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public interest in overseeing workings of the courts and observing, that “[p]eople in an

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open society do not demand infallibility from their institutions, but it is difficult for

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them to accept what they are prohibited from observing.”).

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Finally, Ms. Kanatzar asserts that Ventura Superior’s current practice of

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delaying access until after a complaint has been processed “complies with California

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law,” but as discussed above, neither California’s statutes or rules of court can justify

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providing a lesser degree of access than is guaranteed by the First Amendment.
Thus, Defendant cannot show a “substantial probability” that allowing

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Courthouse News to access new complaints before full processing would irreparably

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damage the interests he cites to support his policy of access-after-processing, nor can

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he show that there are not alternative ways of addressing his concerns that do not

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involve delaying access until after processing. Accordingly, Courthouse News is

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likely to succeed on the merits of its First Amendment claim or, at the very least, has

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raised “serious questions” that “involve a fair chance of success on the merits” so as to

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justify injunctive relief. E.g., Gilder v. PGA Tour, 936 F.2d 417, 422 (9th Cir. 1991).

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2.

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Absent Injunctive Relief, Courthouse News Will Be Irreparably Harmed
Courthouse News has also shown that it will suffer irreparable injury of both a

constitutional and non-compensable nature should the injunction not issue.
a.

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Denial Of The First Amendment Right Of Access To Court Records,
For Even Minimal Times, Constitutes Irreparable Injury That
Supports the Issuance of A Preliminary Injunction

As set forth in Courthouse News’ opening memorandum, the deprivation of
First Amendment rights, for even minimal periods of time, constitutes irreparable
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injury. See Elrod v. Burns, 427 U.S. 347, 357, 96 S. Ct. 2673, 49 L. Ed. 2d 547

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(1976). Defendant’s sole basis for opposing this well-established principle is the

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remarkable assertion that it should not extend to the First Amendment right of access

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to court records and proceedings because the right of court access is distinct from the

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right of free speech. Opp. at 17. Defendant is wrong.

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The Supreme Court, in first articulating the court access right, explained that

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the First Amendment right of access to court proceedings is derived from and is an

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essential component of freedom of speech. As the high court’s plurality wrote:

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Free speech carries with it some freedom to listen. ... What this means in

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the context of trials is that the First Amendment guarantees of speech and

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press, standing alone, prohibit government from summarily closing

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courtroom doors which had long been open to the public at the time that

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Amendment was adopted.

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Richmond Newspapers, 448 U.S. at 576; see also id. at 577 (describing the right of

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court access as “assured by the amalgam of the First Amendment guarantees of speech

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and press, and their affinity to the right of assembly is not without relevance.”); id. at

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580 (“We hold that the right to attend criminal trials is implicit in the guarantees of the

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First Amendment; without the freedom to attend such trials, which people have

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exercised for centuries, important aspects of freedom of speech and ‘of the press could

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be eviscerated.’”); id. at 587-88 (“The structural model links the First Amendment to

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that process of communication necessary for a democracy to survive, and thus entails

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solicitude not only for communication itself, but also for the indispensable conditions

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of meaningful communication.”) (Brennan, J., concurring) (citation and footnote

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omitted). See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604-05,

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102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) (describing the purpose of the First

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Amendment right of access as “to ensure that this constitutionally protected

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‘discussion of governmental affairs’ is an informed one”).

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This finding has been echoed by the appellate courts that have applied
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Richmond Newspapers outside of the context of physical access to criminal

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proceedings. See, e.g., Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067 (3d Cir.

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1984) (civil proceedings and records); New York Civil Liberties Union v. New York

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City Transit Authority, 652 F.3d 247, 254 (2d Cir. 2011) (administrative adjudicatory

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proceedings). See also Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100 (2d Cir.

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2004); Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 322-23 (1st Cir. 1992) (each

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characterizing court access rights as free speech).

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As a result, the denial of the constitutional right of court access is an

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“irreparable injury” that will satisfy that requirement of a preliminary injunction. See

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Huminski v. Corsones, 386 F.3d 116, 156 (2d Cir. 2004); Courthouse News Service v.

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Jackson, 2009 U.S. Dist. LEXIS 62300, at *13, 38 Media L. Rep. 1890 (S.D. Tex.

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2009). The irreparable nature of the injury is further pronounced when the denial of

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access results the media’s inability to bring timely news coverage to the public about

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newsworthy events. See Detroit Free Press v. Ashcroft, 303 F.3d 681, 694-95 (6th Cir.

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2002); Supp. Girdner Decl., ¶¶ 2-3.

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Defendant further errs in suggesting that the right of access is more properly

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described by the reasoning of the three-judge plurality of Houchins v. KQED, 438

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U.S. 1, 9-10 (1978), a case decided two years before Richmond Newspapers. In

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Houchins, the Court considered the press’s right, above and beyond that of the public,

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to access certain closed portion of a county jail. Id. at 2-3. To the extent the

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Houchins plurality opinion remains good law, it does not accurately describe the

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constitutional right of access to court and court-like proceedings. See Cal-Almond,

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Inc. v. U. S. Dep’t of Agriculture, 960 F.2d 105, 109 n.2 (9th Cir. 1992) (explaining

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that while Houchins says no “general” right of access to governmental information,

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“the line of cases from Richmond Newspapers to Press-Enterprise II recognizes that

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there is a limited constitutional right to some government information”); Detroit Free

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Press, 303 F.3d at 710-11 (applying Richmond Newspapers instead of Houchins to

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determine right of access to administrative adjudicatory proceeding).
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b.

Courthouse News Will Also Suffer Non-Constitutional Harm If The
Preliminary Injunction Is Not Granted

As also set forth in Courthouse News’ opening memorandum, Courthouse
News will suffer irreparable harm, independent of its constitutional injury, because its
inability to report on new actions in a timely manner will result in a loss of customer
goodwill. Although commercial injuries may otherwise be compensable with
retrospective monetary relief, because such relief is barred by the 11th Amendment, it
is an irreparable injury that will support the issuance of a preliminary injunction. See
California Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852 (9th Cir. 2009).
Defendant claims that Courthouse News’ loss of goodwill is not concrete, and
that Courthouse News must provide evidence that it has already experienced such
losses to demonstrate irreparable harm. Opp. at 18. But although the Ninth Circuit
requires that a loss of goodwill not be entirely speculative, Colorado River Indian
Tribes v. Town of Parker, 776 F.2d 846, 849-50 (9th Cir. 1985), it does not require
that such loss have already occurred or even be certain to occur. It is sufficient that
there be evidence of a “threatened” loss of prospective customers and goodwill, and
the resulting “possibility of irreparable [harm].” See Stuhlbarg Int’l Sales Co. v. John
D. Brush & Co., 240 F.3d 832, 841 (9th Cir. 2001).
The evidence that Courthouse News has presented, see Girdner Decl., ¶ 28;
Supp. Girdner Decl., ¶¶ 2-3, is thus sufficient to establish irreparable harm in the form

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of an un-compensable loss of goodwill.
3.
The Balance Of Equities Tips In Favor Of Courthouse News
As set forth in Courthouse News’ opening memorandum, the balance of

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equities tips sharply in favor of granting the preliminary injunction. As discussed

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above, as long as Defendant enforces his processing-before-access policy, the press,

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and through the press, the public, are denied their First Amendment rights of access

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and information about the workings of Ventura Superior.14
Defendant again relies on its financial limitations to tip the balance of equities

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back in its favor. However, as discussed above, Courthouse News is not asking this

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Court to make Ventura Superior spend more money, or reassign staff, or make any

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similar resource adjustment. The problem is not the lack of resources. The problem is

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Defendant’s insistence on denying access to newly filed complaints until after they

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have been fully processed. As further discussed above, each of the concerns

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Defendant has about providing access prior to final processing can be addressed in

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ways that do not infringe on Courthouse News’ and the public’s First Amendment

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rights, and do not require Defendant to reallocate his existing resources in any

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significant way. See Jackson, 2009 U.S. Dist. LEXIS 62300, at *14 (concluding

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injury to Courthouse News outweighed any damage any injunction requiring same-

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day access could cause Houston court clerk).

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Defendant’s contention that the public interest will not be served by the

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The Preliminary Injunction Will Serve The Public Interest

preliminary injunction must be rejected on similar grounds.15 As discussed above,

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Defendant downplays this constitutional injury by characterizing it as one borne by
Courthouse News alone. Opp. at 19-20. However, even if Courthouse News’
constitutional injury could be so easily dismissed, the contention is inaccurate. As
discussed above, Courthouse News and other members of the media function as
surrogates for the public, gathering the news on the public’s behalf. Richmond
Newspapers, 448 U.S. at 572-73. Moreover, as set forth in Courthouse News’
opening memorandum, Courthouse News itself functions as a pool reporter for other
members of the media who are not able to send a reporter to the court every day. See
Girdner Decl., ¶¶ 7, 10 & Exh. 2; Courthouse News’ MPA at 5. And news coverage
is highly sensitive to delays in access. Where there is timely access; reporters flock to
the source of news, and the converse is also true. Girdner Decl., ¶ 32.
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Defendant again argues here that the First Amendment right of access is a distinct
right from the right of free speech, and that only the latter strongly serves the public
interest. Opp. at 20. As discussed above, that assertion is wrong. See supra at
Section II(B)(2)(a).
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providing Courthouse News and others with access to newly filed complaints before

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processing has been completed will not harm the public interest in any way. All of

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Defendant’s concerns can be addressed in ways that do less damage to the

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constitutional right of access.16
III.
THERE IS NO BASIS FOR DEFENDANT’S REQUEST
THAT THIS COURT REQUIRE A “SIZEABLE BOND”

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This Court has “discretion to dispense with the security requirement, or to
request mere nominal security, where requiring security would effectively deny access
to judicial review.” Cal. ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency, 766
F.2d 1319, 1325 (9th Cir. 1985) (finding proper the district court’s exercise of its
discretion to waive bond), amended on other grounds, 775 F.2d 998 (9th Cir.);
Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1985) (determining nominal
$1,000 bond in class action not to be an abuse of discretion). Indeed, the waiver of
bond is proper in any case, such as this one, in which the court concludes that there is
no realistic likelihood of harm to the defendant. Barahona-Gomez, 167 F.3d at 1237.

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Defendant requests that the Court require Courthouse News to post a “sizeable
bond,” ostensibly to cover the costs “staff resources” that Defendant contends he
would be compelled to increase in the event this Court orders injunctive relief. But
again, Courthouse News is not asking Defendant to process cases any more quickly,
or to hire more staff. Simply requiring Defendant to cease his practice of delaying
access to new complaints until full processing does not in and of itself cost a single
penny; requiring Defendant to provide same day access to complaints even if they
have not yet been fully processed need not involve anything more than de minimis

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Defendant also argues that the granting of the preliminary injunction will create a
slippery slope for the granting of more intrusive access rights. Opp. at 22. However,
this is irrelevant for the purposes of the propriety of the very limited relief sought
here. But even so, the three-part constitutional scrutiny is designed to help courts
draw bright lines in future cases.
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costs associated with, for example, purchasing a box where newly-filed complaints

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could be placed for media review during a defined window of time at the end of the

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day, together with minimal staff time to walk over new complaints to the box

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(although this staff time could be eliminated altogether if Courthouse News’ reporter

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was simply permitted to access the desks of processing and intake clerks as reporters

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do in other courts). In addition, there might be minimal staff time to accept collateral

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or oversee a check-out procedure. But none of these things justify the “sizeable bond”

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Defendant seeks.

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Moreover, Defendant fails to appreciate that such procedures would eliminate

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the staff time that is currently consumed by current review procedures used by

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Ventura Superior. See Krolak Decl., ¶¶ 6, 9-10. Courts always have and always will

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devote some resources to comply with the constitutional obligation to make their

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records open and accessible to the public. E.g., NBC Subsidiary, 20 Cal. 4th at 1226

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(“The need to comply with the requirements of the First Amendment right of access

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may impose some burdens on trial courts.”). Thus, the relevant question for the

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purposes of considering the bond question is not what the cost of providing access to

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court records is, but rather what, if any, additional, incremental cost of providing

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timely versus delayed access would be.

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Defendant’s request for a “sizable bond” should thus be rejected, and this Court
should waive or at least require only a minimal bond from Courthouse News.
CONCLUSION

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Defendant’s opposition boils down to his insistence that he and his staff cannot

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possibly do what so many other state and federal courts in California and across the

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country have been able to accomplish without any undue burden: allow news reporters

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who visit every day for the specific purpose of reviewing the day’s new complaints to

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see those new complaints on the same day they are filed, even if the full range of

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administrative tasks associated with processing those complaints have not yet been

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completed. Such an assertion is simply not credible, let alone sufficient to overcome

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the First Amendment rights at issue here or even the common law right of access.

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Not only is Courthouse News highly likely to prevail on the merits of its claims,

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but as a matter of law, it will suffer irreparable harm absent relief, and the balance of

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hardships tips decidedly in its favor. Accordingly, Courthouse News respectfully

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requests that the Court enter the preliminary injunction it has requested: namely that

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Defendant be preliminarily enjoined from enforcing his policy of denying Courthouse

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News Service access to new unlimited jurisdiction civil complaints filed at the

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Ventura County Superior Court until after they have been fully processed and

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“approved for public viewing,” and that Defendant be further directed to provide

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Courthouse News’ reporter with access to new unlimited civil complaints no later than

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the end of the day in which they are filed, except in those instances where the filing

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party is seeking a TRO or other immediate relief or has properly placed the filing

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under seal. In addition, for the reasons set forth in its opening memorandum and in

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this reply brief, Courthouse News also renews its request that the bond requirement be

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waived or set at a nominal amount.

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Date: November 7, 2011

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

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By:

/s/ Rachel Matteo-Boehm
Rachel Matteo-Boehm
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE

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