Courthouse News Service v. Michael Planet

Filing 44

TRANSCRIPT for proceedings held on Monday, 11-28-11; 10:59 AM. Court Reporter Theresa Lanza, phone number www.theresalanza.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 1/25/2012. Redacted Transcript Deadline set for 2/4/2012. Release of Transcript Restriction set for 4/3/2012. (Lanza, Theresa)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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- - -

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HONORABLE MANUEL L. REAL, JUDGE PRESIDING

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- - -

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COURTHOUSE NEWS SERVICE,

)
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Plaintiff,
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vs.
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MICHAEL PLANET, etc., et. al.,
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Defendants. )
___________________________________)

No. CV 11-8083-R
MOTION FOR
PRELIM INJUNCTION

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REPORTER'S TRANSCRIPT OF PROCEEDINGS
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Los Angeles, California
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Monday, November 28, 2011
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10:59 A.M.
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THERESA A. LANZA, RPR, CSR
Federal Official Court Reporter
3470 12th Street, Rm. 134
Riverside, California 92501
[phone]
WWW.THERESALANZA.COM

Monday, November 28, 2011

COURTHOUSE NEWS vs. PLANET

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APPEARANCES:

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On Behalf of Plaintiff:

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HOLME ROBERTS & OWEN LLP
BY: Rachel Matteo-Boehm
BY: David Green
560 Mission Street
25th Floor
San Francisco, California
415-268-1996

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94105-2994

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On Behalf of Defendants:

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JONES DAY
BY: Erica L. Reilley
BY: Robert A. Naeve
555 South Flower Street
Fiftieth Floor
Los Angeles, California
213-489-3939

90071

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Monday, November 28, 2011

COURTHOUSE NEWS vs. PLANET

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I N D E X

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Page
MOTION...........................................

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Monday, November 28, 2011

COURTHOUSE NEWS vs. PLANET

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Los Angeles, California; Monday, November 28, 2011; 10:59 A.M.

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-oOoTHE CLERK:

Calling calendar item ten, CV-11-8083,

Courthouse News Service vs. Michael Planet, et cetera, et al.
MS. MATTEO-BOEHM:

Rachel Matteo-Boehm appearing on

10:59

behalf of plaintiff Courthouse News Service.

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MR. GREEN:

David Green for Courthouse News Service.

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MR. NAEVE:

Robert Naeve and Erica Reilley on behalf

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of the defendants.
THE COURT:

Counsel, anything to add to the documents

10:59

which have been filed?
MS. MATTEO-BOEHM:

Your Honor, just a very brief

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point in response to the reply filed in support of defendant's

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motion to dismiss.

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Defendant complains that Courthouse News Service is

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seeking special access.

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simply an end to the delays in access to newly filed complaints

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caused by the defendant's policy of not permitting access until

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after he's completed all of those administrative tasks

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associated with those documents.

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That's not correct.

11:00

We're seeking

11:00

But it's worth pointing out that in the Richmond

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Newspapers case, the U.S. Supreme Court recognized, Look, in

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the context of courtroom proceedings, there's limited seating;

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it's appropriate to give some of that seating to the press.

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For the same reason, as many courts currently do, it's

Monday, November 28, 2011

COURTHOUSE NEWS vs. PLANET

11:00

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appropriate to set special procedures for members of the press

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who visit the court every day for the expressed purpose of

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reviewing newly filed complaints.

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alternatives to restricting access that should be considered in

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the third part of the First Amendment test.

Indeed, this is one of the

11:01

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THE COURT:

All right.

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MR. NAEVE:

Our only point was that the

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First Amendment doesn't grant special access and that the

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access offered to the public has been offered to CNS.

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But

other than that, we stand on our papers, Your Honor.
THE COURT:

11:01

Both plaintiff and defendant agree that

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the Eleventh Amendment bars plaintiff's third cause of action.

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As such, plaintiff's third cause of action is dismissed.

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As for plaintiff's first and second causes of action,

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the Court concludes that abstention is appropriate under both

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the O'Shea doctrine and the Pullman doctrine.

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doctrine, first articulated in O'Shea vs. Littleton, 414 U.S.

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488, 1974, counsels federal courts to decline to exercise their

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equitable powers in cases seeking to reform state institutions.

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Horne vs. Flores, 129 S.Ct. 2579, 2009.

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are heightened when a federal decree has the effect of

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dictating state and local budget priorities."

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The abstention

"Federalism concerns

11:02

In E.T. v. Cantil-Sakauye, 657 F.3d 902, Ninth

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Circuit 2011, the Ninth Circuit recently noted that O'Shea's

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equitable restrain considerations are nearly absolute when the

Monday, November 28, 2011

COURTHOUSE NEWS vs. PLANET

11:02

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state agency in question is a state court.

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CNS seeks for would interfere with the administration of the

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Ventura Superior Court's operations.

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Office would be required to make all new complaints available

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the same day they were filed.

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judicial proceedings to evaluate the constitutionality of each

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delay.

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Here, the relief

The Ventura Clerk's

Failure to do so would require

11:02

This would be a potentially significant disruption of
the court's operations, and could possibly lead to a

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significant reallocation of court services.

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hesitates to dictate state and local budget priorities.

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and local governments have limited funds.

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orders that money be appropriated for one program, the effect

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is often to take funds away from other important programs.

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decision about how to allocate resources is better left to the

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elected representatives.

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This Court

11:03

State

When a federal court

The
11:03

Under the Pullman doctrine, first articulated in

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Railroad Commission of Texas vs. Pullman Company, 312 U.S. 496,

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1941, "federal courts should abstain from decision when

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difficult and unsettled questions of state law must be resolved

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before a substantial federal constitutional question can be

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decided."

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1984.

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11:03

Hawaii Housing Authority vs. Midkiff, 467 U.S. 229,

In the Ninth Circuit, federal courts have the
discretion to abstain under Pullman when:

Monday, November 28, 2011

(1) the complaint

COURTHOUSE NEWS vs. PLANET

11:04

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touches a sensitive area of social policy upon which federal

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courts ought not enter unless no alternative is available; (2)

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a determination of the state ground is capable of resolving the

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controversy; and, (3) the proper resolution of the state ground

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for the decision is uncertain.

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447 F.3d 673, Ninth Circuit 2006.

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Smelt vs. County of Orange,

Here, all three factors are present.

11:04

First, the

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complaint touches a sensitive area of social policy.

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CNS is

asking the Court to direct and oversee administrative

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operations of the Ventura Superior Court, a potentially

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sensitive area of state sovereignty.

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prongs are also present.

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already provides that court records of all types shall be made

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reasonably accessible to all members of the public.

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the term "reasonable access" has not yet been defined by either

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the state courts or the California legislature.

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access were defined to mean "same-day access," this would avoid

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the necessity of this Court deciding the federal constitutional

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issues, a determination that may be premature at this time.

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Thus, defendant's motion to abstain is granted.

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The second and third

Cal. Government Code § 68150(1)

However,

injunction is therefore denied.

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Counsel to prepare the order.

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MR. NAEVE:

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11:05

If reasonable

Under those certain circumstances, the preliminary

(Proceedings concluded.)

Monday, November 28, 2011

11:04

Thank you, Your Honor.

COURTHOUSE NEWS vs. PLANET

11:05

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CERTIFICATE

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I hereby certify that pursuant to section 753, title 28, United
States Code, the foregoing is a true and correct transcript of
the stenographically reported proceedings held in the aboveentitled matter and that the transcript page format is in
conformance with the regulations of the Judicial Conference of
the United States.

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_/S/ Theresa A. Lanza
CSR, RPR
Federal Official Court Reporter

_________________
Date

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Monday, November 28, 2011

COURTHOUSE NEWS vs. PLANET

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1
1 [1] - 6:25
10:59 [1] - 4:1
129 [1] - 5:20
1941 [1] - 6:19
1974 [1] - 5:18
1984 [1] - 6:23

2
2 [1] - 7:2
2006 [1] - 7:6
2009 [1] - 5:20
2011 [2] - 4:1; 5:24
229 [1] - 6:22
2579 [1] - 5:20
28 [1] - 4:1

3
3 [1] - 7:4
312 [1] - 6:18

4
414 [1] - 5:17
447 [1] - 7:6
467 [1] - 6:22
488 [1] - 5:18
496 [1] - 6:18

6
657 [1] - 5:23
673 [1] - 7:6
68150(1 [1] - 7:12

9
902 [1] - 5:23

A
A.M [1] - 4:1
absolute [1] - 5:25
abstain [3] - 6:19,
25; 7:20
abstention [2] - 5:15
access [9] - 4:16-18;
5:4, 8-9; 7:15, 17
accessible [1] - 7:14
action [3] - 5:12
add [1] - 4:10
administration [1] -

6:2
administrative [2] 4:19; 7:9
agency [1] - 6:1
agree [1] - 5:11
al [1] - 4:4
allocate [1] - 6:15
alternative [1] - 7:2
alternatives [1] - 5:4
Amendment [3] 5:5, 8, 12
Angeles [1] - 4:1
appearing [1] - 4:5
appropriate [3] 4:24; 5:1, 15
appropriated [1] 6:13
area [3] - 7:1, 8, 11
articulated [2] - 5:17;
6:17
associated [1] - 4:20
Authority [1] - 6:22
available [2] - 6:4;
7:2
avoid [1] - 7:17

B
bars [1] - 5:12
behalf [2] - 4:6, 8
better [1] - 6:15
BOEHM [2] - 4:5, 12
Boehm [1] - 4:5
brief [1] - 4:12
budget [2] - 5:22;
6:11

C
Cal [1] - 7:12
calendar [1] - 4:3
California [2] - 4:1;
7:16
Cantil [1] - 5:23
Cantil-Sakauye [1] 5:23
capable [1] - 7:3
case [1] - 4:22
cases [1] - 5:19
caused [1] - 4:18
causes [1] - 5:14
certain [1] - 7:21
cetera [1] - 4:4
Circuit [4] - 5:24;
6:24; 7:6
circumstances [1] 7:21
CLERK [1] - 4:3

Clerk's [1] - 6:3
CNS [3] - 5:9; 6:2;
7:8
Code [1] - 7:12
Commission [1] 6:18
Company [1] - 6:18
complains [1] - 4:15
complaint [2] - 6:25;
7:8
complaints [3] 4:17; 5:3; 6:4
completed [1] - 4:19
concerns [1] - 5:20
concluded [1] - 7:25
concludes [1] - 5:15
considerations [1] 5:25
considered [1] - 5:4
constitutional [2] 6:21; 7:18
constitutionality [1]
- 6:6
context [1] - 4:23
controversy [1] - 7:4
correct [1] - 4:16
counsel [2] - 4:10;
7:23
counsels [1] - 5:18
County [1] - 7:5
Court [6] - 4:22;
5:15; 6:10; 7:9, 18
court [5] - 5:2; 6:1,
10, 12; 7:13
court's [1] - 6:9
Court's [1] - 6:3
Courthouse [4] - 4:4,
6-7, 15
courtroom [1] - 4:23
courts [6] - 4:25;
5:18; 6:19, 24; 7:2, 16
CV-11-8083 [1] - 4:3

D
David [1] - 4:7
decided [1] - 6:22
deciding [1] - 7:18
decision [3] - 6:15,
19; 7:5
decline [1] - 5:18
decree [1] - 5:21
defendant [2] - 4:15;
5:11
defendant's [3] 4:13, 18; 7:20
defendants [1] - 4:9
defined [2] - 7:15, 17
delay [1] - 6:7

Case Name/number

delays [1] - 4:17
denied [1] - 7:22
determination [2] 7:3, 19
dictate [1] - 6:11
dictating [1] - 5:22
difficult [1] - 6:20
direct [1] - 7:9
discretion [1] - 6:25
dismiss [1] - 4:14
dismissed [1] - 5:13
disruption [1] - 6:8
doctrine [4] - 5:16;
6:17
documents [2] 4:10, 20

E
E.T [1] - 5:23
effect [2] - 5:21; 6:13
either [1] - 7:15
elected [1] - 6:16
Eleventh [1] - 5:12
end [1] - 4:17
enter [1] - 7:2
equitable [2] - 5:19,
25
Erica [1] - 4:8
et [2] - 4:4
evaluate [1] - 6:6
exercise [1] - 5:18
expressed [1] - 5:2

F
F.3d [2] - 5:23; 7:6
factors [1] - 7:7
failure [1] - 6:5
federal [8] - 5:18, 21;
6:12, 19, 21, 24; 7:1,
18
federalism [1] - 5:20
filed [5] - 4:11, 13,
17; 5:3; 6:5
First [2] - 5:5, 8
first [4] - 5:14, 17;
6:17; 7:7
Flores [1] - 5:20
funds [2] - 6:12, 14

G
government [1] 7:12
governments [1] 6:12
grant [1] - 5:8

date

granted [1] - 7:20
GREEN [1] - 4:7
Green [1] - 4:7
ground [2] - 7:3

H
Hawaii [1] - 6:22
heightened [1] - 5:21
hesitates [1] - 6:11
Horne [1] - 5:20
Housing [1] - 6:22

I
important [1] - 6:14
indeed [1] - 5:3
injunction [1] - 7:22
institutions [1] 5:19
interfere [1] - 6:2
issues [1] - 7:19
item [1] - 4:3

J
judicial [1] - 6:6

L
law [1] - 6:20
lead [1] - 6:9
left [1] - 6:15
legislature [1] - 7:16
limited [2] - 4:23;
6:12
Littleton [1] - 5:17
local [3] - 5:22; 6:11
Look [1] - 4:22
Los [1] - 4:1

M
MATTEO [2] - 4:5, 12
Matteo [1] - 4:5
MATTEO-BOEHM
[2] - 4:5, 12
Matteo-Boehm [1] 4:5
mean [1] - 7:17
members [2] - 5:1;
7:14
Michael [1] - 4:4
Midkiff [1] - 6:22
Monday [1] - 4:1
money [1] - 6:13

2

motion [2] - 4:14;
7:20
MR [4] - 4:7; 5:7;
7:24
MS [2] - 4:5, 12
must [1] - 6:20

N
NAEVE [3] - 4:8; 5:7;
7:24
Naeve [1] - 4:8
nearly [1] - 5:25
necessity [1] - 7:18
new [1] - 6:4
newly [2] - 4:17; 5:3
News [4] - 4:4, 6-7,
15
Newspapers [1] 4:22
Ninth [4] - 5:23; 6:24;
7:6
noted [1] - 5:24
November [1] - 4:1

powers [1] - 5:19
preliminary [1] 7:21
premature [1] - 7:19
prepare [1] - 7:23
present [2] - 7:7, 12
press [2] - 4:24; 5:1
priorities [2] - 5:22;
6:11
procedures [1] - 5:1
Proceedings [1] 7:25
proceedings [2] 4:23; 6:6
program [1] - 6:13
programs [1] - 6:14
prongs [1] - 7:12
proper [1] - 7:4
provides [1] - 7:13
public [2] - 5:9; 7:14
Pullman [4] - 5:16;
6:17, 25
purpose [1] - 5:2

Q

O
questions [1] - 6:20
O'Shea [2] - 5:16
O'Shea's [1] - 5:24
offered [2] - 5:9
Office [1] - 6:4
often [1] - 6:14
one [2] - 5:3; 6:13
oOo [1] - 4:2
operations [3] - 6:3,
9; 7:10
Orange [1] - 7:5
order [1] - 7:23
orders [1] - 6:13
ought [1] - 7:2
oversee [1] - 7:9

P
papers [1] - 5:10
part [1] - 5:5
permitting [1] - 4:18
plaintiff [2] - 4:6;
5:11
plaintiff's [3] - 5:12
Planet [1] - 4:4
point [2] - 4:13; 5:7
pointing [1] - 4:21
policy [3] - 4:18; 7:1,
8
possibly [1] - 6:9
potentially [2] - 6:8;
7:10

R
Rachel [1] - 4:5
Railroad [1] - 6:18
reallocation [1] 6:10
reason [1] - 4:25
reasonable [2] - 7:15
reasonably [1] - 7:14
recently [1] - 5:24
recognized [1] - 4:22
records [1] - 7:13
reform [1] - 5:19
Reilley [1] - 4:8
relief [1] - 6:1
reply [1] - 4:13
representatives [1] 6:16
require [1] - 6:5
required [1] - 6:4
resolution [1] - 7:4
resolved [1] - 6:20
resolving [1] - 7:3
resources [1] - 6:15
response [1] - 4:13
restrain [1] - 5:25
restricting [1] - 5:4
reviewing [1] - 5:3
Richmond [1] - 4:21
Robert [1] - 4:8

S
S.Ct [1] - 5:20
Sakauye [1] - 5:23
same-day [1] - 7:17
seating [2] - 4:23
second [2] - 5:14;
7:11
seeking [3] - 4:16;
5:19
seeks [1] - 6:2
sensitive [3] - 7:1, 8,
11
Service [4] - 4:4, 6-7,
15
services [1] - 6:10
set [1] - 5:1
shall [1] - 7:13
significant [2] - 6:8,
10
simply [1] - 4:17
Smelt [1] - 7:5
social [2] - 7:1, 8
sovereignty [1] 7:11
special [3] - 4:16;
5:1, 8
stand [1] - 5:10
state [11] - 5:19, 22;
6:1, 11, 20; 7:3, 11,
16
substantial [1] - 6:21
Superior [2] - 6:3;
7:10
support [1] - 4:13
Supreme [1] - 4:22

6:17, 25; 7:21
unless [1] - 7:2
unsettled [1] - 6:20

V
Ventura [3] - 6:3;
7:10
visit [1] - 5:2
vs [6] - 4:4; 5:17, 20;
6:18, 22; 7:5

W
worth [1] - 4:21

§
§ [1] - 7:12

T
tasks [1] - 4:19
ten [1] - 4:3
term [1] - 7:15
test [1] - 5:5
Texas [1] - 6:18
therefore [1] - 7:22
third [4] - 5:5, 12-13;
7:11
three [1] - 7:7
touches [2] - 7:1, 8
types [1] - 7:13

U
U.S [4] - 4:22; 5:17;
6:18, 22
uncertain [1] - 7:5
under [4] - 5:15;

Case Name/number

date