Courthouse News Service v. Michael Planet

Filing 33

REPLY in Support of MOTION to Dismiss Case and Abstain #21 filed by Defendant Michael Planet. (Reilley, Erica)

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Robert A. Naeve (State Bar No. 106095)
[e-mail]
Erica L. Reilley (State Bar No. 211615)
[e-mail]
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, CA 92612
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
MICHAEL PLANET, IN HIS OFFICIAL
CAPACITY AS COURT EXECUTIVE
OFFICER/CLERK OF THE VENTURA
COUNTY SUPERIOR COURT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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COURTHOUSE NEWS SERVICE,

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Plaintiff,
v.
MICHAEL PLANET, IN HIS
OFFICIAL CAPACITY AS COURT
EXECUTIVE OFFICER/CLERK OF
THE VENTURA COUNTY
SUPERIOR COURT,
Defendant.

Case No. CV11-08083
Assigned for all purposes to
Hon. Manuel L. Real
DEFENDANT’S REPLY IN
SUPPORT OF MOTION TO
DISMISS AND ABSTAIN
Date:
November 21, 2011
Time:
10:00 a.m.
Courtroom: 8

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Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

TABLE OF CONTENTS

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INTRODUCTION ...................................................................................................... 1
introduction ................................................................................................................. 1
argument ..................................................................................................................... 4
I.

ABSTEntion is warranted under both O’Shea and pullman. ........................... 4
A. O’Shea Abstention Is Warranted Here Where CNS’s Requested Relief
Would Interfere With The Administration of State Courts. ..................... 4

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1. CNS Improperly Conflates the Younger and O’Shea Abstention
Doctrines.............................................................................................. 4

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2. CNS’s Requested Relief Clearly Interferes With The Administration
Of Ventura Superior Court’s Operations. ........................................... 6

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3. CNS Concedes By Silence That It Has Not Sought Relief In State
Court. ................................................................................................. 10

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B.

Pullman Abstention Also Is Warranted Here Where Its Invocation
Would Avoid An Unnecessary Ruling On A Federal Constitutional
Question. ................................................................................................. 11
1. Pullman Abstention Has And Can Be Invoked In First Amendment
Cases. ................................................................................................. 11
2. A Decision On The Constitutional Issues In This Case Can Be
Obviated By A State Court Decision On Whether “Reasonable
Access” Can Only Be “Same-Day Access.” ..................................... 12

II. cns has failed to adequately allege either a constitutional or common law
Right of “same-day access” to newly filed unlimited civil complaints. ........ 13
A. CNS Has Not Established that “Experience and Logic” Recognize a
First Amendment Right of “Same-Day Access.” ................................... 13
1. CNS’s Effort to Craft a “Tradition” of Experience from Personal
Experience Should be Rejected. ........................................................ 13
2. CNS Has Failed to Allege that “Logic” Compels a Recognized Right
of “Same-Day Access.” ..................................................................... 15

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Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

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B.

Nor Does Federal Common Law Provide a Right of “Same-Day
Access.” .................................................................................................. 17

conclusion ................................................................................................................. 18

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Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

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TABLE OF AUTHORITIES

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Page
CASES
Almodovar v. Reiner,
832 F.2d 1138 (9th Cir. 1987) ............................................................................ 11
Ashcroft v. Iqbal,
129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) .......................................................... 3
Asociación de Periodistas de PR v. Mueller,
529 F. 3d 52 (1st Cir. 2008) ................................................................................. 2
Badham v. United States Dist. Court for Northern Dist.,
721 F.2d 1170 (9th Cir. 1983) ............................................................................ 11
Ballard v. Wilson,
856 F.2d 1568 (5th Cir. 1988) .............................................................................. 8
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ................................... 3
Branzburg v. Hayes,
408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972) ....................................... 1
California First Amendment Coalition v. Calderon,
150 F. 3d 976 (9th Cir 1998) ................................................................................ 2
Canton v. Spokane Sch. Dist. #81,
498 F.2d 840 (9th Cir. 1974) .............................................................................. 12
Chez Sez III Corp. v. Union,
945 F.2d 628 (3d Cir. 1991) ............................................................................... 11
Courthouse News Service v. Jackson,
No. H-09-1844, 2009 WL 2163609 1, 38 Media L. Rep. 1890
(S.D. Tex. July 20, 2009) ............................................................................. 14, 16
De Garmo v. Superior Court,
1 Cal. 2d 83 (1934) ............................................................................................. 10
E.T. v. Cantil-Sakauye,
No. 10-15248, slip op. 17457 (9th Cir. Sept. 13, 2011) ............................... 4, 5, 6
- iii -

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

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TABLE OF AUTHORITIES
(continued)
Page
Family Div. Trial Lawyers of Superior Court-D.C., Inc. v. Moultrie,
725 F.2d 695 (D.C. Cir. 1984).......................................................................... 5, 9
FOCUS v. Allegheny Court of Common Pleas,
75 F.3d 834 (3d Cir. 1996) ................................................................................... 9
Fresh Int’l Corp. v. Agric. Labor Relations Bd.,
805 F.2d 1353 (9th Cir. 1986) .............................................................................. 5
Green v. City of Tucson,
255 F.3d 1086 (9th Cir. 2001) .............................................................................. 5
Hartford Courant Co. v. Pellegrino,
380 F.3d 83 (2d Cir. 2004) ................................................................................... 9
Hirsh v. Justices of the Supreme Court of Cal.,
67 F.3d 708 (9th Cir. 1995) ................................................................................ 11
Hoover v. Wagner,
47 F.3d 845 (7th Cir. 1995) .................................................................................. 8
Horne v. Flores,
129 S. Ct. 2579, 174 L. Ed. 2d 406 (2009) .......................................................... 6
Houchins v. KQED, Inc.,
438 U.S. 1 (1978) ................................................................................................. 1
Hughes v. Lipscher,
906 F.2d 961 (3d Cir. 1990) ............................................................................... 12
Kaufman v. Kaye,
466 F.3d 83 (2d Cir. 2006) ................................................................................... 8
Kentucky Press Ass’n, Inc. v. Commonwealth of Kentucky,
454 F.3d 505 (6th Cir. 2006) .............................................................................. 13
Lake v. Speziale,
580 F. Supp. 1318 (D. Conn. 1984) ................................................................... 10
Luckey v. Miller,
976 F.2d 673 (11th Cir. 1992) .............................................................................. 8
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Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

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TABLE OF AUTHORITIES
(continued)
Page
Mason v. County of Cook,
488 F. Supp. 2d 761 (N.D. Ill. 2007).................................................................. 10
Middlesex County Ethics Comm’n,
457 U.S. 423, 102 S. Ct. 2515,
73 L. Ed. 2d 116 (1982)...................................................................................... 11
O’Shea v. Littleton,
414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974) ................................ passim
Parker v. Turner,
626 F.2d 1 (6th Cir. 1980) .................................................................................... 5
Pell v. Procunier,
417 U.S. 817, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974) ....................................... 1
Pompey v. Broward County,
95 F.3d 1543 (11th Cir. 1996) .............................................................................. 8
Porter v. Jones,
319 F.3d 483 (9th Cir. 2003) .............................................................................. 11
Press-Enterprise Co. v. Superior Court,
478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) ..................................... 14, 15
Pulliam v. Allen,
466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984) ..................................... 8
Railroad Comm’n of Texas v. Pullman,
312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) ...................................... 11, 12
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) ....................... 13, 14, 15
Rivera-Puig v. Garcia-Rosario,
983 F.2d 311 (1st Cir. 1992) ................................................................................ 9
TrafficschoolOnline, Inc. v. Superior Court,
89 Cal. App. 4th 222 (2001) ............................................................................... 10

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Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

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TABLE OF AUTHORITIES
(continued)

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Page
United States v. Edwards,
823 F.2d 111 (5th Cir. 1987) ........................................................................ 15, 16
Whittlestone, Inc. v. Handi-Craft Co.,
618 F.3d 970 (9th Cir. 2010) .............................................................................. 17
Younger v. Harris,
401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) .................................. passim
STATUTES

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42 U.S.C. § 1983........................................................................................................ 8

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Cal. Gov. Code § 68150(l)....................................................................................... 12

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Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

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INTRODUCTION
Before turning to the merits of CNS’s Opposition, three overarching points
are worthy of preliminary note:
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CNS agrees that its third claim for relief is barred by the Eleventh

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Amendment and should have been filed in state court. (Opp. at 23-24.) This claim

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should be dismissed accordingly.

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2.

Much of CNS’s argument, both here and in its motion for preliminary

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injunction, is premised on the assumption that members of “The Press” have a

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greater right of access to court records than do members of the general public. (E.g.

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Declaration of Christopher Marshall In Support of Motion For Preliminary

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Injunction, Ex. 4 at at 23 (“While I am not a lawyer, it is my understanding that . . .

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the law also recognizes it is appropriate to create special access procedures for the

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media so they can convey that information to other interested members of the legal,

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academic and business communities”).) Hence, CNS argues, it’s okay for

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Ms. Krolak to go behind the counter and to review unfiled documents before they

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are released to the general public, because she’s a reporter, and must therefore have

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a greater right to know. (E.g. Compl. ¶¶ 25 – 26.)

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But members of the press simply do not enjoy any such right of “special

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access.” To the contrary, the law does not grant to CNS or other member of the

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press any greater right to review court filings than that enjoyed by members of the

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general public. Branzburg v. Hayes, 408 U.S. 665, 684, 92 S. Ct. 2646, 33 L. Ed.

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2d 626 (1972) (“the First Amendment does not guarantee the press a constitutional

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right of special access to information not available to the public generally”); see

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also Houchins v. KQED, Inc., 438 U.S. 1, 12 (1978) (noting that “a claimed special

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privilege of access . . . is not essential to guarantee the freedom to communicate or

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publish”); Pell v. Procunier, 417 U.S. 817, 834, 94 S. Ct. 2800, 41 L. Ed. 2d 495

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(1974) (“The Constitution does not … require government to accord the press

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special access to information not shared by members of the public generally”);
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Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

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Asociación de Periodistas de PR v. Mueller, 529 F. 3d 52, 58 (1st Cir. 2008)

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(noting that “[t]he First Amendment does not grant the press a special right of

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access to property beyond the public domain”).

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And that’s the rub of this case. As we demonstrate below, the public only

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has a qualified or reasonable right of access to court files. And in this case, CNS

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does not claim that Ventura Superior Court refused to permit Ms. Krolak to review

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newly filed complaints on the same basis as others of the general public. Instead,

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CNS explicitly alleges at paragraphs 29 and 30 of its Complaint it took too long for

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Ventura Superior Court to make these complaints to Ms. Krolak. But because “the

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challenged policies did not ‘deny the press access to sources of information

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available to members of the general public,’ those policies did not violate the First

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Amendment.” California First Amendment Coalition v. Calderon, 150 F. 3d 976,

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981 (9th Cir 1998).

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3.

In a transparent attempt to avoid dismissal, CNS now mischaracterizes

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the relief it seeks, claiming at page 16 of its Opposition that it seeks relief “not just

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from the denial of same-day access in particular, but also because of delays in

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access in general . . . .” (Opp. at 16:25-28.) While it is true that CNS’s complaint

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provides background facts regarding perceived “delays in access in general,” the

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relief CNS seeks has nothing to do with “delays in general.” Instead, it is patently

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clear that the only relief CNS seeks is an order requiring Ventura Superior Court to

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provide “same-day access,” a phrase that, as the Court can see, is peppered

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throughout CNS’s complaint in general, and emphasized in its prayers for relief in

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particular:

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Case No. CV 11-08083 R (MANx)

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Under these circumstances, this Court should reject as facile CNS’s argument
that dismissal is inappropriate because its complaint states “a facially plausible
claim to relief” arising from alleged “delays in general.” (Opp. at 17:3-5.) It is
settled that a complaint must allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007). Allegations about “delays in general” that are
“merely consistent with” the asserted violation of the alleged right to “same-day
access” are insufficient to render them plausible. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 173 L. Ed. 2d 868 (2009); see also Twombly, 550 U.S. at 563 (stating Conley
v. Gibson’s “no set of facts” formulation “is best forgotten as an incomplete,
negative gloss on an accepted pleading standard” and does not describe “the
minimum standard of adequate pleading to govern a complaint’s survival”).

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Case No. CV 11-08083 R (MANx)

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ARGUMENT
I.

ABSTENTION IS WARRANTED UNDER BOTH O’SHEA AND
PULLMAN.
A.

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1.

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O’Shea Abstention Is Warranted Here Where CNS’s Requested
Relief Would Interfere With The Administration of State Courts.
CNS Improperly Conflates the Younger and O’Shea
Abstention Doctrines.

CNS contends that O’Shea1 abstention does not apply here because the broad

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injunctive and declaratory relief it seeks will not highly intrude upon the state

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judiciary or otherwise prove unworkable. (Opp. at 7-14.) To arrive at this

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erroneous conclusion, CNS conflates the requirements for Younger abstention as

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applicable to O’Shea abstention. (Id. at 8-10 & n.4.) No court has so held.

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Although Younger2 and O’Shea are both borne out of comity and federalism

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concerns—including avoiding undue intrusion into matters of state concern—they

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are nevertheless distinct abstention doctrines. Unlike Younger abstention, which

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focuses on how granting relief in a federal lawsuit will affect ongoing state judicial

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proceedings, equitable abstention under O’Shea is concerned with how the

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adjudication and relief to be awarded in a federal suit will intrude upon the

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prerogatives of states to structure and fund their own governmental institutions.

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See O’Shea, 414 U.S. at 500-04 (looking to whether restructuring of state court

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system required); E.T. v. Cantil-Sakauye, No. 10-15248, slip op. 17457, 17464 (9th

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Cir. Sept. 13, 2011) (invoking O’Shea abstention where remedies pertaining to

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attorney caseloads potentially involved “substantial interference” with operation of

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state court program, “including allocation of the judicial branch budget,

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establishment of program priorities, and court administration.”).

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O’Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974).
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Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).
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Case No. CV 11-08083 R (MANx)

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CNS contends that O’Shea abstention is permissible “only if the requested

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relief meets three conditions,”3 and that “a court must not abstain unless all of these

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elements are satisfied.” (Opp. at 9 & n.4.) That is simply an inaccurate statement

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of law. Although courts have identified various factors which militate toward

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exercising equitable abstention under O’Shea, including those identified by CNS,

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none has articulated a multi-factor test for O’Shea abstention (as is the case for

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Younger abstention4) that must be satisfied prior to its application. Cf. Family Div.

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Trial Lawyers of Superior Court-D.C., Inc. v. Moultrie, 725 F.2d 695, 703 (D.C.

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Cir. 1984) (concluding a district court should “stay its hand” under O’Shea

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principles “where granting the prayer for relief would require the federal court to

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monitor day-to-day operations of local courts”); Parker v. Turner, 626 F.2d 1, 7-8

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(6th Cir. 1980) (finding O’Shea abstention appropriate where federal relief would

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be “intrusive and unworkable,” including where such relief would “interfere with

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the day-to-day conduct of state trials”). Moreover, even where courts have

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articulated a multi-factor test for applying abstention doctrines, the Ninth Circuit

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has recognized that those tests “have not always captured all the relevant factors,

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and thus may have obscured rather than clarified the path to proper judicial

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decisionmaking.” Green v. City of Tucson, 255 F.3d 1086, 1089 (9th Cir. 2001) (en

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banc), overruled on other grounds by Gilbertson v. Albright, 381 F.3d 965, 968-70

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(9th Cir. 2004) (en banc).

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Even if the relief CNS seeks may not involve the same degree of structural

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reform that existed in O’Shea or E.T. (a point Ventura Superior Court does not

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concede), mandating that Ventura Superior Court provide CNS with “same-day

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CNS enumerates the criteria as “(1) [the relief sought] will be a major
continuing intrusion, (2) it will be unworkable, and (3) it will require the federal
court to audit/monitor the state court extensively on an ongoing basis.” (Opp. at 9.)
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Younger abstention is appropriate when (1) state proceedings are ongoing,
(2) the proceedings implicate important state interests, and (3) the state proceedings
provide an adequate opportunity to raise federal questions. Fresh Int’l Corp. v.
Agric. Labor Relations Bd., 805 F.2d 1353, 1357-58 (9th Cir. 1986).
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Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

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access” to newly filed complaints (see Compl. Prayer, ¶¶ 1-2) nevertheless highly

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intrudes upon the administration of a state’s judicial system by dictating how

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severely limited funds and personnel are to be allocated.5 To be sure, neither

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O’Shea nor E.T. stand as the factual “floor” for invoking abstention. Rather, under

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the same principles that guided the Court’s abstention ruling in O’Shea and cases

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that followed, this Court should likewise “stay its hand.” Indeed, federalism

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concerns are heightened when “a federal court decree [would] ha[ve] the effect of

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dictating state or local budget priorities.” Horne v. Flores, 129 S. Ct. 2579, 2593-

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94, 174 L. Ed. 2d 406 (2009) (“States and local governments have limited funds.

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When a federal court orders that money be appropriated for one program, the effect

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is often to take funds away from other important programs.”). That is this case.

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2.

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CNS’s Requested Relief Clearly Interferes With The
Administration Of Ventura Superior Court’s Operations.

CNS seeks a mandatory injunction by which this Court would order the

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Ventura Superior Court to do something entirely new—that is, conduct judicial

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proceedings to determine the constitutionality of any alleged failure by its clerk’s

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office to provide same-day access to newly filed complaints. (E.g., Opp. at 13.) In

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addition, CNS wants this Court to order the Ventura Superior Court to conduct

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these new hearings on a “case-by-case basis.” (Id.; see also id. at 18.)

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The scope of CNS’s requested relief is truly monumental for two related

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reasons. First, the relief CNS requests purports to require Ventura Superior Court

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to conduct case-by-case access reviews for virtually all newly filed complaints. As

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CNS’s assertion that many e-filing courts require manually filed
complaints, while true, misses the point. (See Opp. at 20-21.) It is the fact that
most other documents can be electronically filed in e-filing courts that distinguishes
the ability of those courts to provide same-day access to newly filed complaints
from that of Ventura Superior Court. Because the clerk’s offices in e-filing courts
are not burdened by the substantial administrative task imposed by the need to
process by hand the many hundreds of other documents—apart from newly filed
complaints—that courts, including Ventura Superior, receive on a daily basis, their
ability to provide same-day access to newly filed complaints is necessarily greater.
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Case No. CV 11-08083 R (MANx)

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the Court can see from the following excerpts from paragraphs 29 and 30 of the

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Complaint, CNS claims that “94 percent of new complaints were not available on

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the day they were filed”:

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(Compl. ¶¶ 29 & 30.) That means, by CNS’s own allegations, that CNS wants this

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Court to order Ventura Superior Court to hold a judicial proceeding to evaluate the

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constitutionality of any delay in access to newly filed complaints in nearly all

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instances.6

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Second, the mandatory injunction CNS requests effectively makes this Court

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the overseer of the Ventura Superior Court clerk’s office, and places the Superior

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Court at risk of federal contempt proceedings, at least in cases in which CNS or

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another member of the public were to challenge the propriety of the Superior

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Court’s case-by-case decisions.

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In short, CNS wants this Court to order that Ventura Superior Court judges

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be pulled away from other proceedings to make case-by-case determinations as to

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whether “same-day access” is required for a particular newly filed complaint. That

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sort of disruption intrudes upon state court proceedings in a manner that directly

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implicates important federalism concerns and warrants abstention under O’Shea.

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Ventura Superior Court does not, however, concede the accuracy of any of
these figures, as detailed in its Opposition to CNS’s Motion for Preliminary
Injunction at 5.
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Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

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414 U.S. at 501-02; see also Kaufman v. Kaye, 466 F.3d 83 (2d Cir. 2006) (“[T]he

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relief he now seeks in the federal courts would, if granted, leave ‘the state judiciary

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... free to craft a remedy in the first instance.’ However, any remedy fashioned by

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the state would then be subject to further challenges in the district court . . . .”);

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Pompey v. Broward County, 95 F.3d 1543, 1546-1553 (11th Cir. 1996) (“[T]he

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difficulty of framing a useful injunction, when considered in conjunction with the

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affront to comity that such an injunction would constitute counsels against federal

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court intervention. [¶] Even if the district court were able to frame such an

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injunction in a satisfactory way, it would be unwise to do so. It would be unwise,

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because such an injunction would be at once an insult to the state judges and an

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empty but potentially mischievous command to these officials to avoid committing

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any errors[.]”) (citations and internal quotations omitted); Hoover v. Wagner, 47

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F.3d 845, 850-51 (7th Cir. 1995) (abstaining pursuant to O’Shea in First

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Amendment case); Luckey v. Miller, 976 F.2d 673, 679 (11th Cir. 1992) (“If a state

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judge does not obey a district judge’s injunction, are we willing to jail the state

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judge for contempt? Avoidance of this unseemly conflict between state and federal

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judges is one reason for O’Shea and Younger.”); Ballard v. Wilson, 856 F.2d 1568,

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1570 (5th Cir. 1988) (“[A] federal court ruling on the practices and procedures of

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the municipal court system . . . would require supervisory enforcement of the ruling

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by the federal courts. This type of monitoring of state court procedures also offends

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principles of federalism and was condemned by the Supreme Court in O’Shea . . .

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.”).7

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Moreover, to the extent CNS’s “clarified” request for relief actually seeks to
enjoin the conduct of state court judges, such relief is barred by the express
language of 42 U.S.C. § 1983. See also Pulliam v. Allen, 466 U.S. 522, 536-41,
104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984) (“The other concern raised by collateral
injunctive relief against a judge, particularly when that injunctive relief is available
through § 1983, relates to the proper functioning of federal-state relations. Federal
judges, it is urged, should not sit in constant supervision of the actions of state
judicial officers, whatever the scope of authority under § 1983 for issuing an
injunction against a judge. . . . We reaffirm the . . . need for restraint by federal
8

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

1

CNS’s authority does not compel a contrary conclusion. CNS contends that

2

“federal courts routinely entertain challenges by the media to closure orders,” and

3

cites for that proposition inapposite decisions in which federal courts have refused

4

to apply Younger abstention where state courts have entered gag, sealing, or

5

protective orders.8 (Opp. at 13-14.) But as CNS plainly acknowledges, Ventura

6

Superior Court is not precluding access to newly filed complaints (Compl. ¶¶ 5, 22-

7

29), nor has it implemented a blanket policy affirmatively restricting the media’s

8

access to such documents. The most that can be said, and that CNS has alleged, is

9

that there are, at times, some minimal delays in access. (Id.) Thus, the rationale

10

underlying the decisions on which CNS relies is inapplicable here.

11

CNS also claims that O’Shea abstention has been rejected in cases “where

12

the court is merely required to replace an existing rule or policy.” (Opp. at 10 &

13

n.6.) The decisions on which CNS relies refused to abstain under O’Shea because

14

the relief sought would not involve day-to-day monitoring of state judicial

15

proceedings. See Family Div. Trial Lawyers, 725 F.2d at 703-04 (concluding that if

16

challenged rule governing payment of appointed counsel was deemed

17

unconstitutional, the appropriate remedy would merely require state court to

18

reallocate funds already appropriated for this purpose and would not involve

19

(continued…)

20
21
22
23
24
25
26
27
28

courts called on to enjoin the actions of state judicial officers.”) (prior to
amendment to § 1983 relating to same).
8
See, e.g., Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 87-89 (2d Cir.
2004) (rejecting application of various abstention doctrines, including Younger,
where docket sheets and case files were sealed from disclosure); Rivera-Puig v.
Garcia-Rosario, 983 F.2d 311, 319-20 (1st Cir. 1992) (finding Younger abstention
inapplicable in case challenging constitutionality of state court rule closing all
criminal preliminary hearings because there was no interference with any state
proceeding against plaintiff); FOCUS v. Allegheny Court of Common Pleas, 75
F.3d 834, 837, 843-44 (3d Cir. 1996) (finding Younger abstention inapplicable to
prevent advocacy group from asserting federal challenge to state court protective
order because the group’s motion to intervene in underlying state case was denied;
therefore, first Younger requirement—ongoing state court proceeding—was
absent).
9

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

1

“monitoring” of state court); Mason v. County of Cook, 488 F. Supp. 2d 761, 765

2

(N.D. Ill. 2007) (ordering state court to have defendants physically present in

3

courtroom for bond hearings would not require continuing supervision of state

4

court proceedings); Lake v. Speziale, 580 F. Supp. 1318, 1330 (D. Conn. 1984)

5

(injunction requiring state court to advise class members of their right to counsel in

6

civil contempt proceedings would not involve ongoing oversight of those

7

proceedings).

8

But that is not this case. There are practical realities to the “rule” CNS seeks

9

that require far more than a substitution in “policy.” They require a mandate for

10

how the limited funds and resources available to Ventura Superior Court for all

11

administrative purposes are to be allocated. They further require a mandated case-

12

by-case adjudication by a Ventura Superior Court judge of any delays in access—

13

exactly the sort of intermeddling with state administration that O’Shea counsels

14

against.

15

3.

16
17

CNS Concedes By Silence That It Has Not Sought Relief In
State Court.

O’Shea’s equitable abstention doctrine is based in no small part upon the

18

“basic doctrine of equity jurisprudence that of equity should not act . . . when the

19

moving party has an adequate remedy at law and will not suffer irreparable injury if

20

denied equitable relief.” O’Shea, 414 U.S. at 499 (quoting Younger, 401 U.S. at

21

43-44).

22

In this case, CNS concedes by its silence that it has not sued in state court to

23

enforce its alleged right of “same-day access” to newly filed complaints. To be

24

clear, such an action is available under state law. See, e.g., TrafficschoolOnline,

25

Inc. v. Superior Court, 89 Cal. App. 4th 222, 236-37 (2001) (“no statute prohibits

26

the superior court from issuing an order to its executive officer”); De Garmo v.

27

Superior Court, 1 Cal. 2d 83, 86 (1934) (“the writ should issue against respondent

28
10

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

1

clerk, the purpose being ‘to compel the performance of an act which the law

2

specially enjoins, as a duty resulting’ from his office”).

3

It is settled that state courts can and do “safeguard federal constitutional

4

rights.” Middlesex County Ethics Comm’n, 457 U.S. 423, 431, 102 S. Ct. 2515, 73

5

L. Ed. 2d 116 (1982); see also Hirsh v. Justices of the Supreme Court of Cal., 67

6

F.3d 708, 713 (9th Cir. 1995). It is for these additional reasons that this Court

7

should equitably abstain from hearing this matter, so that it can be resolved in the

8

first instance in state court.

9

B.

10

Pullman Abstention Also Is Warranted Here Where Its Invocation
Would Avoid An Unnecessary Ruling On A Federal Constitutional
Question.

11

1.

12
13

Pullman Abstention Has And Can Be Invoked In First
Amendment Cases.

CNS first claims that Pullman9 abstention is inappropriate because this is a

14

First Amendment case. However, it is settled that, “[a]lthough courts have avoided

15

abstention in first amendment challenges, there is no absolute rule against

16

abstention in first amendment cases.” Almodovar v. Reiner, 832 F.2d 1138, 1140

17

(9th Cir. 1987); see also Chez Sez III Corp. v. Union, 945 F.2d 628, 634 (3d Cir.

18

1991) (“The mere fact that the Ordinance is being challenged on First Amendment

19

grounds is not enough to automatically render Pullman abstention inappropriate in

20

this case.”). Abstention may not be appropriate in cases in which a delay in

21

adjudication will “chill” First Amendment rights, e.g., Porter v. Jones, 319 F.3d

22

483, 493 (9th Cir. 2003), however, abstention may still be appropriate when the

23

trial court “can fashion its order in a way to reduce those dangers.” Badham v.

24

United States Dist. Court for Northern Dist., 721 F.2d 1170, 1174 (9th Cir. 1983).

25
26
27
28

In this case, CNS has not alleged anything that remotely suggests a “chilling”
of First Amendment rights. Nor could it. CNS alleges it waited almost eleven
9

Railroad Comm’n of Texas v. Pullman, 312 U.S. 496, 61 S. Ct. 643, 85 L.
Ed. 971 (1941).
11

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

1

months to bring this action once its reporter started her daily visits. In addition,

2

CNS explicitly alleges that whatever delays it may have experienced did not “chill”

3

or otherwise prevent the service from issuing its daily reports of new complaint

4

filings in Ventura. In short, Pullman abstention is appropriate here because CNS’s

5

commercial speech has not been “chilled,” and because CNS’s claims involve

6

administration of the state judicial system. Hughes v. Lipscher, 906 F.2d 961, 967

7

(3d Cir. 1990).

8

2.

9

A Decision On The Constitutional Issues In This Case Can
Be Obviated By A State Court Decision On Whether
“Reasonable Access” Can Only Be “Same-Day Access.”

10
11

CNS also contends that Pullman abstention is inappropriate because “[t]here

12

is no uncertain question of state law that can resolve this case.” (Opp. at 15.) In so

13

arguing, CNS states that the California Supreme Court has already determined that

14

the right of access to courts employs the First Amendment analysis developed by

15

the U.S. Supreme Court. (Id.) But as discussed more fully below, the U.S.

16

Supreme Court has never held that the First Amendment requires more than

17

reasonable access. However, that the Supreme Court has yet to define what

18

constitutes reasonable access under the First Amendment does not mean that a state

19

court could not do so under state law.

20

Indeed, insofar as “reasonable access” under California Government Code

21

section 68150(l) is not defined under existing law, a state court ruling requiring

22

“same-day access” to newly filed unlimited civil complaints pursuant to that

23

provision likely would obviate, or at least delimit, the federal constitutional

24

question here—a critical element of Pullman abstention. Canton v. Spokane Sch.

25

Dist. #81, 498 F.2d 840, 845 (9th Cir. 1974) (“With regard to elements (2) and (3)

26

[of the Pullman abstention test], it is crucial that the uncertainty in the state law be

27

such that construction of it by the state courts might obviate, or at least delimit,

28

decision of the federal (constitutional) question.”).
12

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

1

As the Sixth Circuit recognized in a slightly different context, just because

2

“court clerks have denied [CNS] the relief it seeks does not mean that [California]

3

law would not provide for such access were [CNS] to assert such a right in the

4

[California] courts pursuant to the statutory provisions at issue, which it has not

5

done.” Kentucky Press Ass’n, Inc. v. Commonwealth of Kentucky, 454 F.3d 505,

6

509-10 (6th Cir. 2006). This Court should abstain from hearing this matter.

7

II.

8
9

CNS HAS FAILED TO ADEQUATELY ALLEGE EITHER A
CONSTITUTIONAL OR COMMON LAW RIGHT OF “SAME-DAY
ACCESS” TO NEWLY FILED UNLIMITED CIVIL COMPLAINTS.
A.

10

CNS Has Not Established that “Experience and Logic” Recognize
a First Amendment Right of “Same-Day Access.”

As explained in Ventura Superior Court’s Motion to Dismiss, the Supreme

11
12

Court has identified two related criteria for evaluating whether a First Amendment

13

right of access exists: (1) whether the place and process have historically been

14

open to the press and general public (i.e., “experience”); and (2) whether public

15

access plays a significant positive role in the functioning of the particular process in

16

question (i.e., “logic”). Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 588-

17

89, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (Brennan, Marshall, JJ, concurring).

18

Rather than address either of these criteria, CNS wholly ignores them, assumes a

19

constitutional (and common law) right of “same-day access” exists, and proceeds to

20

argue that any delays in access run afoul of its constitutional right. (Opp. at 2, 18-

21

19.)

22
23
24

1.

CNS’s Effort to Craft a “Tradition” of Experience from
Personal Experience Should be Rejected.

As discussed in Ventura Superior Court’s Motion, there is no historic right to

25

“same-day access” of newly filed unlimited civil complaints. (Mot. at 19-20.)

26

Although various federal and state courts have recognized the public’s general First

27

Amendment right of access to civil proceedings and related court records, no

28

published decision has ever held that access to civil case filings must occur the
13

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

1

same day they are filed or otherwise submitted to a court. (Id.) Faced with this

2

fact, CNS mounts two equally anemic arguments that should be rejected.

3

First, to support its claim of a judicially recognized right to “same-day

4

access” to newly filed civil complaints, CNS resorts to a single, unpublished Texas

5

decision where it obtained the kind of preliminary injunctive relief it seeks here.

6

Courthouse News Service v. Jackson, No. H-09-1844, 2009 WL 2163609 1, **2-5,

7

38 Media L. Rep. 1890 (S.D. Tex. July 20, 2009). However, the reasoning of that

8

decision lacks rational support. Indeed, none of the authority on which that district

9

court relied actually held—or even considered whether—a First Amendment right

10

of “same-day access” to newly filed civil complaints exists. At most, the court’s

11

discussion of a First Amendment right of access confirms general principles of

12

reasonable access in criminal and civil cases. See id. at **3-4.

13

Second, CNS attempts to identify a historic tradition of “same-day access” to

14

newly filed complaints based on its personal experience with select state and

15

federal courts during its twenty-one years of business. (Opp. at 19-20; see Compl.

16

¶¶ 10-14.) But it is the jurisprudential history, not one’s individual history, that

17

determines whether a historic right of access exists. In considering the public’s

18

right of access to judicial proceedings or information, the Supreme Court has long

19

grounded its analysis in historical considerations of early American jurisprudence,

20

including traditions pre-dating enactment of the Bill of Rights and the Constitution

21

itself. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10-11, 106 S. Ct.

22

2735, 2741-44, 92 L. Ed. 2d 1 (1986) (Press-Enterprise II) (discussing trial of

23

Aaron Burr and noting that “[f]rom Burr until the present day, the near uniform

24

practice of state and federal courts has been to conduct preliminary hearings in open

25

court”); Richmond Newspapers, 448 U.S. at 565-66 (examining cases brought in

26

England both before and after the Norman Conquest in 1066 and finding “nothing

27

to suggest that the presumptive openness” of English courts “was not also an

28

attribute of the judicial systems of colonial America”). Whether a historical
14

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

1

tradition of access to information exists, then, depends on a longstanding

2

recognition in our system of justice that such access is warranted in light of the

3

purposes served by allowing public scrutiny of the information.

4

CNS’s experience with certain courts better able to provide “same-day

5

access” to newly filed complaints is admirable but fails to demonstrate the kind of

6

historic tradition of access relied on by the Supreme Court and lower courts as a

7

basis for recognizing a First Amendment right of access to court records.

8
9

2.

CNS Has Failed to Allege that “Logic” Compels a
Recognized Right of “Same-Day Access.”

10

Despite seeking injunctive and declaratory relief that requires Ventura

11

Superior Court to ensure access to new unlimited civil jurisdiction complaints “on

12

the same day they are filed” (Compl. Prayer ¶¶ 1-2), CNS now argues that the

13

gravamen of its constitutional and common law right of access claims stems “not

14

just from the denial of same-day access in particular,” but also from delays in

15

access generally. (Opp. at 16-17.) But CNS fails to allege how any purported

16

delays in access adversely affect the “newsworthiness” of the complaints on which

17

it reports (a determination subjectively made by CNS), or how obtaining “same-day

18

access” would improve the functioning of the Ventura Superior Court, which is the

19

appropriate inquiry for the “logic” component of a right.

20

In Press Enterprise II, 478 U.S. at 8, the Supreme Court explained that the

21

“logic” criterion considers “whether public access plays a significant positive role

22

in the functioning of the particular process in question.” This consideration is

23

premised on the belief that “governmental processes operate best under public

24

scrutiny.” Id.; see Richmond Newspapers, 448 U.S. at 569-73 (recognizing that

25

public scrutiny over the judicial system serves to (1) promote community respect

26

for the rule of law, (2) provide a check on the activities of judges and litigants, and

27

(3) foster more accurate fact finding); United States v. Edwards, 823 F.2d 111, 119

28

(5th Cir. 1987) (“The value served by the first amendment right of access is in its
15

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

1

guarantee of a public watch to guard against arbitrary, overreaching, or even

2

corrupt action by participants in judicial proceedings.”).

3

CNS fails to allege how the public’s interest in scrutinizing the Ventura

4

Superior Court judicial system is in any way harmed or diminished during the

5

minimal period of time between when a complaint is received by the court and the

6

time it is made publicly available upon filing. See Edwards, 823 F.2d 111, 119 (5th

7

Cir. 1987) (concluding that “significant news will receive the amount of publicity it

8

warrants . . . even when such news is not reported contemporaneously with the

9

suspect event”) (emphasis added).10

10

Tellingly, CNS also does not dispute the absence of harm from the

11

reasonable access it receives at Ventura Superior Court. (See Mot. at 23.) Indeed,

12

CNS does not identify a single subscriber that has complained of CNS’s

13

purportedly delayed reporting. Nor has CNS identified a single instance in which

14

any alleged delay in processing a new complaint meant that CNS lost out on an

15

opportunity to timely report on an event. (Id.) In fact, the opposite is true. CNS

16

touts itself as such a trusted source for timely reporting on significant litigation

17

events that numerous other news outlets use CNS’s reporting as a springboard for

18

their own reporting, which often occurs many days after CNS’s reporting. (See

19

Compl. ¶ 17.) There is thus no “logic”-based reason why “same-day access” to

20

newly filed unlimited civil complaints should be constitutionally recognized.

21
22
23
24
25
26
27
28

10

In an attempt to distinguish Edwards from this case, CNS again resorts to
the unpublished Jackson decision (Opp. at 22), which rejected the reasoning in
Edwards on the basis that the state court’s reason for delaying access to newly filed
complaints—implementation of an online access service—was not sufficiently
significant. Jackson, 2009 WL 2163609 at *4. However, for the reasons discussed
above, the Jackson decision is inapposite and should not be followed. Moreover,
any delays in same-day access that CNS experiences at Ventura Superior Court are
not chiefly the result of an ongoing attempt by the court to improve its processing
and filing system, but of its attempt simply to stay afloat within an already
overburdened, underfunded, and understaffed court system.
16

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

1
2

For all these reasons, CNS’s first claim for relief should be dismissed for
failure to state a claim upon which relief can be granted.

3

B.

4
5

Nor Does Federal Common Law Provide a Right of “Same-Day
Access.”

As it does with its constitutional claim, CNS conflates a right of reasonable

6

access to court records with a right of “same-day access”, and contends that

7

because Ventura Superior Court acknowledges that a right to reasonable access

8

exists, it must demonstrate a compelling reason for restricting access. (Opp. at 18

9

at n.14.) That argument completely overlooks the procedural posture of this case,

10

and the fact that a motion to dismiss challenges the legal sufficiency of claims

11

alleged in a complaint. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,

12

974 (9th Cir. 2010) (“The purpose of [Rule] 12(b)(6) is to enable defendants to

13

challenge the legal sufficiency of complaints . . . .”) (internal citation and quotation

14

marks omitted). Thus, for Ventura Superior Court to prevail on its motion does not

15

require it to make any showing whatsoever.

16

Moreover, that Ventura Superior Court acknowledges that a qualified,

17

constitutional and common law right of reasonable access to civil court records

18

exists is in no way an admission that such a right of access equates to a right of

19

“same-day access.” Indeed, Ventura Superior Court’s Motion to Dismiss argues

20

the exact opposite. (See Mot. at 18-23.) And, as with its constitutional claim, CNS

21

fails to identify any authority that would support a common law right of access

22

claim for failure to provide “same-day access” to newly filed unlimited civil

23

complaints. Thus, CNS’s second claim for relief should also be dismissed.

24

///

25

///

26

///

27

///

28

///
17

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)

1
2

CONCLUSION
For the foregoing reasons, as well as CNS’s voluntary dismissal of its third

3

cause of action under state law, Ventura Superior Court’s motion to abstain and

4

dismiss should be granted, and the Court should dismiss this action in its entirety.

5
6

Dated: November 7, 2011

Respectfully submitted,
JONES DAY

7
8

By: /s/ Robert A. Naeve
Robert A. Naeve

9
10

Attorneys for Defendant
MICHAEL PLANET, IN HIS
OFFICIAL CAPACITY AS COURT
EXECUTIVE OFFICER/CLERK OF
THE VENTURA COUNTY
SUPERIOR COURT

11
12
13
14

LAI-3153027

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16
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19
20
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22
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25
26
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18

Def’s Reply ISO Mot. to Dismiss
Case No. CV 11-08083 R (MANx)