Courthouse News Service v. Michael Planet

Filing 66

Opposition re: MOTION to Dismiss Amended Complaint #61 filed by Plaintiff Courthouse News Service. (Matteo-Boehm, Rachel)

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

1 Rachel E. Matteo-Boehm (SBN 195492)
2 [e-mail]
Roger Myers (SBN 146164)
3 [e-mail]
4 Leila C. Knox (SBN 245999)
[e-mail]
5 BRYAN CAVE LLP
6 560 Mission Street, 25th Floor
San Francisco, CA 94105-2994
7 Telephone: [phone]
8 Facsimile: [phone]
9 Jonathan G. Fetterly (SBN 228612)
10 [e-mail]
BRYAN CAVE LLP
11 120 Broadway, Suite 300
12 Santa Monica, CA 90401-2386
Telephone: [phone]
13 Facsimile: [phone]
14
Attorneys for Plaintiff
15 COURTHOUSE NEWS SERVICE
16

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

17
18

19 Courthouse News Service,

Case No. CV11-08083 R (MANx)

20

OPPOSITION OF PLAINTIFF
COURTHOUSE NEWS SERVICE
TO MOTION TO DISMISS OF
DEFENDANT MICHAEL PLANET

Plaintiff,

21

vs.

22
Michael Planet, in his official capacity as
23 Court Executive Officer/Clerk of the
24 Ventura County Superior Court,
Defendant.

25

Date: August 18, 2014
Time: 10 a.m.
Judge: Hon. Manuel L. Real

26
27
28
208475.1

PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1

TABLE OF CONTENTS

2
3
4
5
6

Page
INTRODUCTION ................................................................................................. 1
BACKGROUND ................................................................................................... 2
I.

7
8
9 II.

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

10
11
12

DEFENDANT’S MOTION FAILS BECAUSE THE NINTH
CIRCUIT HELD COURTHOUSE NEWS HAS STATED A
CLAIM FOR VIOLATION OF THE RIGHT OF ACCESS TO
NEWLY FILED COMPLAINTS................................................................ 4
DEFENDANT’S MOTION FAILS BECAUSE THE NINTH
CIRCUIT HAS MADE CLEAR, AND MANY CASES HAVE
HELD, COMPLAINTS ARE RECORDS TO WHICH A RIGHT
OF ACCESS ATTACHES WHEN FILED ................................................ 6
A.

Numerous Cases Have Rejected Defendant’s Theory That
Complaints Are Not Public Judicial Records Until They Are
Acted On By The Court .................................................................... 7

B.

In The Ninth Circuit And Most Courts, A First Amendment
Right Of Access Applies To Judicial Records, Such As
Complaints, Upon Filing................................................................... 9

13
14
15
16
17
18 III.

20

DEFENDANT’S MOTION FAILS BECAUSE THE NINTH
CIRCUIT HAS FOUND A RIGHT OF IMMEDIATE ACCESS
TO PRETRIAL RECORDS, WHICH EXPERIENCE AND
LOGIC SHOW APPLIES TO COMPLAINTS ..........................................12

21

A.

There Is A Strong, Clear History Of Access To Complaints
“When Filed” ....................................................................................13

B.

There Is A Well-Established Logic In Access To Complaints
When Filed ........................................................................................15

C.

History And Logic Thus Confirm A Right Of Contemporaneous
Access ...............................................................................................18

19

22
23
24
25
26
27
28

i
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 IV.
2
3
4
5

FINALLY, DEFENDANT’S MOTION FAILS BECAUSE THE
NINTH CIRCUIT PROHIBITS USE OF TIME, PLACE AND
MANNER ANALYSIS TO JUSTIFY DELAYS IN EXERCISING
FIRST AMENDMENT RIGHTS................................................................19
A.

As The Ninth Circuit Has Held, Denying Access For Even A
Limited Time Must Satisfy Strict Scrutiny And Is Not Merely
A TPM Restriction ............................................................................19

B.

As The Ninth Circuit Aso Held, Defendant’s Policy Fails TPM
Scrutiny Because He Cannot Carry His Burden Of Justifying
The Delay In Access .........................................................................21

6
7
8
9

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

10

1.

Defendant’s Policy Is Not Content-Neutral Because It
Requires Review Of Content To Approve Complaints
For Public Viewing.................................................................22

2.

Defendant Has Not And Cannot Demonstrate That His
Policy Is Narrowly Tailored To Serve A Significant
Governmental Interest ............................................................22

3.

Defendant Does Not Explain How The Delays Inherent
In His Policy Allow Effective Communication To An
Audience For Immediate News ..............................................24

11
12
13
14
15
16
17

18 CONCLUSION......................................................................................................25
19
20
21
22
23
24
25
26
27
28
ii
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1

TABLE OF AUTHORITIES

2
3
4
5

Page(s)
FEDERAL
ACLU v. Holder,
652 F. Supp. 2d 654 (E.D. Va. 2009)...........................................................13

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

6 Adarand Constructors v. Slator,
528 U.S. 216 (2000) ..................................................................................... 3
7
8 American Dist. Tel. Co. v. Brink’s Inc.,
380 F.2d 131 (7th Cir. 1967)........................................................................15
9
Anderson v. City of Hermosa Beach,
10
621 F.3d 1051 (9th Cir. 2010)......................................................................22
11 Anderson v. Cryovac, Inc.,
805 F.2d 1 (1st Cir. 1986) ............................................................................10
12
Associated Press v. U.S. Dist. Ct.,
13
705 F.2d 1143 (9th Cir. 1983) .............................................................. passim
14 Barber v. Conradi,
51 F. Supp. 2d 1257 (N.D. Ala. 1999) .................................................... 21, 23
15
16 Bay Area Peace Navy v. U.S.,
914 F.2d 1224 (9th Cir. 1990).................................................................22, 24
17
Bell v. Boise,
18
709 F.3d 890 (9th Cir. 2013)........................................................................ 3
19 Brown & Williamson Tobacco Corp. v. F.T.C.,
710 F.2d 1165 (6th Cir. 1983)................................................................... 7, 10
20
Bull v. LogEtronics, Inc.,
21
323 F. Supp. 115 (E.D. Va. 1971)............................................................. 13
22 Cal-Almond, Inc. v. U.S. Dep’t of Ag.,
960 F.2d 105 (9th Cir. 1992)..................................................................... 14
23
24 CBS, Inc. v. U.S. Dist. Ct.,
765 F.2d 823 (9th Cir. 1985)........................................................................ 8
25
In re Charlotte Observer,
26
882 F.2d 850 (4th Cir. 1989)........................................................................18
27 Comite de Jornaleros de Redondo Beach v. Redondo Beach,
657 F.3d 936 (9th Cir. 2011)........................................................ 19, 21, 23, 24
28
iii
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 Company Doe v. Pub. Citizen,
749 F.3d 246 (4th Cir. 2014)........................................................................18
2
3 In re Cont’l Ill. Sec. Litig.,
732 F.2d 1302 (7th Cir. 1984).............................................................. 7, 9, 10
4
In re Coordinated Pretrial Proceedings,
101 F.R.D. 34 (C.D. Cal. 1984) ................................................................... 7
5

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

6 In re Copley Press, Inc.,
518 F.3d 1022 (9th Cir. 2008)......................................................................12
7
Courthouse News Serv. v. Jackson,
8
2010 U.S. Dist. LEXIS 74571 (S.D. Tex. Feb. 26, 2010)....................... 2, 18
9 Courthouse News Serv. v. Planet,
750 F.3d 776 (9th Cir. 2014)................................................................ passim
10
11

Delaware Coalition for Open Gov’t, Inc. v. Strine,
733 F.3d 510 (3d Cir. 2013) ........................................................................... 14

12 Detroit Free Press v. Ashcroft,
303 F.3d 681 (6th Cir. 2002).......................................................................... 14
13
14 In re Eastman Kodak Co.,
2010 WL 2490982 (S.D.N.Y. June 15, 2010)...................................... 8, 9, 11,
15
16
16 Edwards v. Coeur D'Alene,
262 F.3d 856 (9th Cir. 2001)........................................................................ 24
17
18 EEOC v. Erection Co.,
900 F.2d 168 (9th Cir. 1990)........................................................................10
19
Eichman v. Fotomat Corp.,
880 F.2d 149 (9th Cir. 1989)........................................................................ 4
20
21 FTC v. Standard Financial Mgt. Co.,
830 F.2d 404 (1st Cir. 1987) ........................................................................ 8
22
Gannett Co. v. DePasquale,
23
443 U.S. 368 (1979) .....................................................................................10
24 Globe Newspaper Co. v. Superior Court,
457 U.S. 596 (1982) ...................................................................12, 14, 15, 20
25
26

Grove Fresh Distribs. v. Everfresh Juice Co.,
24 F.3d 893 (7th Cir. 1994)..........................................................................18

27 Hartford Courant Co. v. Pellegrino,
380 F.3d 83 (2d Cir. 2004) ......................................................................10, 11
28
iv
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 IDT Corp v. eBay, Inc.,
709 F.3d 1220 (8th Cir. 2013)................................................................... 9, 13
2
3 Ischay v. Barnhart,
383 F. Supp. 2d 1199 (C.D. Cal. 2005)........................................................ 5
4
John v. Minneapolis Park & Rec. Bd.,
729 F.3d 1094 (8th Cir. 2013)......................................................................23
5

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

6 Kahle v. Villaflor,
2012 U.S. Dist. LEXIS 9118 (D. Haw. Jan. 26, 2013) ................................23
7
Klein v. San Clemente,
8
584 F.3d 1196 (9th Cir. 2009).................................................................22, 23
9 Kraus v. Presidio Trust Facilities Div.,
572 F.3d 1039 (9th Cir. 2009)......................................................................19
10
11

Lee v. City of Los Angeles,
250 F.3d 668 (9th Cir. 2001)........................................................................ 3

12 Leigh v. Salazar,
677 F.3d 892 (9th Cir. 2012)........................................................................25
13
14 Levenstein v. Salafsky,
164 F.3d 345 (7th Cir. 1998)........................................................................ 1
15
Leucadia, Inc. v. Applied Extrusion Technologies, Inc.,
16
998 F.2d 157 (3d Cir. 1993) .........................................................................13
17 Long Beach Area Peace Network v. Long Beach,
522 F.3d 1010 (9th Cir. 2008)......................................................................24
18
19

Lugosch v. Pyramid Co.,
435 F.3d 110 (2d Cir. 2006) ................................................................7, 11, 18

20 NAACP, Western Region v. Richmond,
798 F.2d 1346 (9th Cir. 1984)......................................................................19
21
22 N.Y. Civil Lib. Union v. NYC Transit Auth.,
684 F.3d 286 (2d Cir. 2011) .........................................................................10
23
In re New York Times,
24
828 F.2d 110 (2d Cir. 1987) .........................................................................11
25 Nixon v. Warner Comm’ns,
435 U.S. 589 (1978) ..................................................................................... 9
26
In re Nvidia Corp. Derivative Litig.,
27
2008 U.S. Dist. LEXIS 120077 (N.D. Cal. Apr. 22, 2008) .................... 9, 17
28
v
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 Oliner v. Kontrabecki,
745 F.3d 1024 (9th Cir. 2014)...................................................................... 6
2
3 Oregonian Pub. Co. v. U.S. Dist. Ct.,
920 F.2d 1462 (9th Cir. 1990).................................................................10, 17
4
OSU Student Alliance v. Ray,
699 F.3d 1053 (9th Cir. 2012)...................................................................... 4
5

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

6 O’Shea v. Littleton,
414 U.S. 488 (1974) ..................................................................................... 3
7
Pena v. Schwartz,
8
853 F. Supp. 164 (D. Md. 1994) ..................................................................11
9 Press-Enterprise Co. v. Superior Court,
464 U.S. 501 (1984) (“Press-Enterprise I”) ................................................12
10
11

Press-Enterprise Co. v. Superior Court,
478 U.S. 1 (1986) (“Press-Enterprise II”) ..............................................12, 15

12 In re Providence Journal Co.,
293 F.3d 1 (1st Cir. 2002) ............................................................................ 8
13
14 Publicker Indus. v. Cohen,
733 F.2d 1059 (3d Cir. 1984).......................................................................10
15
Railroad Comm’n v. Pullman Co.,
16
312 U.S. 496 (1941) ..................................................................................... 3
17 In re Reporter’s Committee for Freedom of the Press,
773 F.2d 1325 (D.C. Cir. 1985) .............................................................. 7, 20
18
19

Republic of Philippines v. Westinghouse Elec. Corp.,
139 F.R.D. 50 (D.N.J. 1991) ................................................................... 9, 17

20 Richmond Newspapers v. Virginia,
448 U.S. 555 (1980) ...................................................................12, 14, 20, 24
21
22 Rocky Mountain Bank v. Google,
428 Fed. Appx. 690 (9th Cir. 2011) ............................................................. 6
23
Rosen v. Port of Portland,
24
641 F.2d 1243 (9th Cir. 1981).......................................................................24
25 San Jose Mercury News v. U.S. Dist. Ct.,
187 F.3d 1096 (9th Cir. 1999)...................................................................... 9
26
S.O.C., Inc. v. County of Clark,
27
152 F.3d 1136 (9th Cir. 1998)......................................................................22
28
vi
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 In re Special Grand Jury,
674 F.2d 778 (9th Cir. 1982)........................................................................ 25
2
3 Standard Chartered Bank Int’l v. Calvo,
757 F. Supp. 2d 258 (S.D.N.Y. 2010)........................................7, 9, 12, 16, 25
4
Stapp v. Overnite Transp. Co.,
1998 U.S. Dist. LEXIS 6412 (D. Kan. Apr. 9, 1998) ..................................17
5

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

6 United Bhd. of Carpenters v. NLRB,
540 F.3d 957 (9th Cir. 2008)........................................................................22
7
U.S. v. Amodeo,
8
44 F.3d 141 (2d Cir. 1995) ........................................................................... 8
9 U.S. v. Appelbaum,
707 F.3d 283 (4th Cir. 2013)........................................................................ 8
10
11

U.S. v. Cote,
51 F.3d 178 (9th Cir. 1995).......................................................................... 4

12 U.S. ex rel. Dahlman v. Emergency Physicians,
2004 U.S. Dist. LEXIS 31304 (D. Minn. Jan. 5, 2004) ....................... 9, 12, 13
13
14 U.S. v. El-Sayegh,
131 F.3d 158 (D.C. Cir. 1997) ..................................................................... 8
15
U.S. v. Hastings,
16
695 F.2d 1278 (11th Cir. 1983)....................................................................20
17 U.S. v. Hernandez,
124 F. Supp. 2d 698 (S.D. Fla. 2000)...........................................................21
18
19

U.S. v. Miller,
822 F.2d 828 (9th Cir. 1987)........................................................................ 5

20 U.S. v. Ritchie,
342 F.3d 903 (9th Cir. 2003)........................................................................ 3
21
22 U.S. v. Sampson,
297 F. Supp. 2d 342 (D. Mass. 2003) ..........................................................21
23
U.S. v. Wecht,
24
537 F.3d 222 (3d Cir. 2008) .........................................................................18
25 U.S. Tobacco v. Big South Wholesale of Va.,
2013 U.S. Dist. LEXIS 165638 (E.D.N.C. Nov. 21, 2013) .........................13
26
Valley Broadcasting v. U.S. Dist. Ct.,
27
798 F.2d 1289 (9th Cir. 1986)......................................................................23
28
vii
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 Vassiliades v. Israely,
714 F. Supp. 604 (D. Conn. 1989) ..................................................7, 9, 11,16
2
3 Vivid Entm’t v. Fielding,
965 F. Supp. 2d 1113 (C.D. Cal. 2013)........................................................23
4
Waggoner v. Dallaire,
767 F.2d 589 (9th Cir. 1985)........................................................................ 5
5
6 Ward v. Rock Against Racism,
491 U.S. 781 (1989) ................................................................................21, 22
7
Whiteland Woods, L.P. v. Township of W. Whiteland,
8
193 F.3d 177 (3d Cir. 1999) .................................................................. 14, 20
9

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

10

CALIFORNIA

11 Estate of Hearst,
67 Cal. App. 3d 777 (1977)..........................................................................15
12
Kurata v. L.A. News Pub. Co.,
13
4 Cal. App. 2d 224 (1935)............................................................................15
14 Mercury Interactive Corp. v. Klein,
158 Cal. App. 4th 60 (2007)..........................................................................11
15
16 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
20 Cal. 4th 1178 (1999)...................................................................6, 7, 11, 20
17
18

OTHER STATES

19 Atlanta Journal v. Long,
369 S.E.2d 755 (Ga. 1988) ...........................................................................18
20
21 Campbell v. New York Evening Post, Inc.,
157 N.E. 153 (N.Y. 1927) ........................................................................ 13, 15
22
Charlottesville Newspapers, Inc. v. Berry,
23
206 S.E.2d 216 (Va. 1974) ...........................................................................15
24 Cook v. First Morris Bank,
719 A.2d 724 (N.J. Super. 1998).................................................................. 8
25
Cowley v. Pulfiser,
26
137 Mass. 392 (1884)..............................................................................14, 15
27 In re Globe Newspaper Co.,
958 N.E.2d 822 (Mass. 2011) ......................................................................13
28
viii
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 In re Johnson,
598 N.E.2d 406 (Ill. App. 1992) ..................................................................16
2
3 Langford v. Vanderbilt Univ.,
287 S.W.2d 32 (Tenn. 1956) ........................................................................15
4
Lybrand v. The State Co.,
184 S.E. 580 (S.C. 1936)..............................................................................13
5

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

6 Newell v. Field Enters.,
415 N.E.2d 434 (Ill. App. 1980) ..................................................................17
7
Paducah Newspapers v. Bratcher,
8
118 S.W.2d 178 (Ky. App. 1937) ................................................................16
9 Ridenour v. Schwartz,
875 P.2d 1306 (Ariz. 1994) ..........................................................................20
10
11

Salzano v. North Jersey Media Group,
993 A.2d 778 (N.J. 2010) .............................................................................15

12 Shiver v. Valdosta Press,
61 S.E.2d 221 (Ga. App. 1950) ....................................................................15
13
14 Torski v. Mansfield Journal Co.,
137 N.E.2d 679 (Ohio App. 1956) ...............................................................15
15
16
17

STATUTES & RULES
Bail Reform Act of 1984 ........................................................................................14

18 Cal. Gov’t Code § 68151(a)(1)............................................................................... 6
19 Cal. R. Ct. 1.20(a)................................................................................................... 6
20
21

OTHER AUTHORITIES

22 Doggett & Mucchetti, Public Access to Public Courts:
Discouraging Secrecy in the Public Interest,
23
69 Tex. L. Rev. 643 (1991) ..........................................................................17
24 Schwartz & Appel, Rational Pleading in the Modern World of Civil
Litigation: The Lessons and Public Policy Benefits of Twombly
25
and Iqbal,
26
33 Harv. J.L. & Pub. Pol’y 1107 (2010) ......................................................17
27 Sward, A History of the Civil Trial in the United States,
51 U. Kan. L. Rev. 347 (2003).....................................................................17
28
ix
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1
2

INTRODUCTION
In April, the Ninth Circuit rejected an attempt by Defendant Michael Planet,

3 Clerk of Ventura Superior Court, to avoid defending a policy that said it was not
4 possible to allow same-day access to civil complaints prior to processing, which can
5 “take days or weeks.” Courthouse News Serv. v. Planet, 750 F.3d 776, 779 (2014).
6

Two months later, Defendant announced he would allow public access to civil

7 complaints on the same day they are received, prior to processing, demonstrating he
8 is quite capable of providing same-day access to new complaints. He also moved to
9 dismiss, not on grounds of mootness – since he can always reverse the new policy –

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

10 but on the theory Courthouse News had failed to state a cognizable claim that his
11 original policy of denying access for “days or weeks” violated the First Amendment.
12

This would no doubt come as news to the Ninth Circuit, which found “no

13 question that CNS itself has alleged a cognizable injury” to its “First Amendment
14 right of access.” Courthouse News, 750 F.3d at 788. Defendant never mentions this
15 passage, nor any of the cases in the Ninth Circuit, and elsewhere, that expressly and
16 emphatically reject each and every basis of his motion to dismiss.
17

Instead, Defendant constructs an alternate reality out of a few cases in other

18 jurisdictions that are misquoted, antiquated or widely rejected. In his world, a
19 complaint is not among the pretrial records to which the Ninth Circuit recognized a
20 right of immediate access, Associated Press v. U.S. Dist. Ct., 705 F.2d 1143 (9th
21 Cir. 1983) – even though a plethora of precedent has held it is – but instead is the
22 “purely private” property of Defendant until it is “adjudicate[ed].” MPA 21.
23

It is astonishing a court official takes this view, as the courts and their records

24 are not private but belong to the public. “Litigation is a public exercise; it consumes
25 public resources. It follows that in all but the most extraordinary cases – perhaps
26 those involving weighty matters of national security – complaints must be public.”
27 Levenstein v. Salafsky, 164 F.3d 345, 348 (7th Cir. 1998). If Defendant’s motion is
28 granted, exactly the opposite would become true. His motion should be denied.
1
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1

BACKGROUND
The Ninth Circuit aptly summarized the factual allegations.1 Courthouse

2

3 News, also referred to by the Ninth Circuit as CNS, “is a news wire service that
4 specializes in reporting on civil lawsuits,” with some 3,000 subscribers ranging from
5 “major media outlets” to “law firms, university and law school libraries, ” while
6 others, including the Ninth Circuit, “rely on CNS” for “daily news” from its website.
7 Courthouse News, 750 F.3d at 780, 788 & n.7. Its reporters “daily visit courthouses
8 around the country to review recently filed civil complaints.” Id. at 780. “In state
9 and federal courthouses throughout California and across the United States, CNS

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

10 is generally able to access civil complaints on the day they are filed.” Id. (citing as
11 examples all federal district courts, and “many” state courts, in California).2
12

At Ventura Superior, however, access to new complaints was often delayed

13 for “up to thirty-four calendar days,” a result of Defendant’s policy of “refus[ing] to
14 make complaints available before they had been fully processed.” Courthouse
15 News, 750 F.3d at 779, 782. Faced with ongoing delays and no prospect of relief
16 from Defendant, Courthouse News filed suit for declaratory and injunctive relief.
17 (ECF #1). Courthouse News sought the same relief it had previously obtained from
18 a federal court in Texas, which enjoined a state court clerk from denying Courthouse
19 News same-day access to new complaints, with exceptions for, among other things,
20 cases where plaintiff sought emergency relief. Courthouse News Serv. v. Jackson,
21 2010 U.S. Dist. LEXIS 74571 (S.D. Tex. Feb. 26, 2010) (permanent injunction).
22

Defendant said it was “not possible” to provide access prior to processing

23 and still “ensure the integrity” of filings, MPA 5, and exert “quality control” over
24 complaints to “approve[]” them for public viewing. Req. for Jud. Not. (“RJN”),
25
26
27

1

While Courthouse News filed an amended complaint after the Ninth Circuit ruled,
the amended complaint did not alter the factual allegations. (ECF #58).

Throughout this Opposition, all emphases are added, and all citations to quotations
28 within quotations are deleted, unless otherwise noted.
2

2
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 Exh. 41 (C. Kanatzar Decl., ¶¶ 29, 34, 39).3 But Defendant never explained why so
2 many courts could provide same-day access while Ventura Superior could not.
3

Instead, Defendant moved to dismiss on grounds, inter alia, of abstention

4 under Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941) and O’Shea v.
5 Littleton, 414 U.S. 488 (1974). In November 2011, this Court granted Defendant’s
6 motion to dismiss on abstention grounds. (ECF #38). In April 2014, the Ninth
7 Circuit reversed. Reiterating that Pullman abstention is “‘generally inappropriate
8 when First Amendment rights are at stake,’” the Ninth Circuit rejected it here
9 because there is “no question that CNS itself has alleged a cognizable injury” – to

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

10 wit, “violation of CNS’s First Amendment right of access” – caused by “the denial
11 of timely access to newly filed complaints.” Courthouse News, 750 F.3d at 784,
12 788. And it rejected O’Shea abstention because Ventura Superior “has available a
13 variety of simple measures” to provide same-day access without harming the
14 interests it sought to protect and without federal court oversight. Id. at 791.
15

After the Ninth Circuit ruled, Defendant found a way to do what was “not

16 possible,” and altered his policy to provide same-day access “prior to processing.”
17 RJN, Exh. 40. And he moved to dismiss, again, for alleged failure to state a claim.4
18
19
20
21
22
23
24
25
26

3

Courts may consider on a 12(b)(6) motion any matter that may be judicially
noticed, U.S. v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003) – and may judicially
notice matters of public record – but not any “disputed facts” in those records. Lee
v. City of Los Angeles, 250 F.3d 668, 688-90 (9th Cir. 2001). The Court thus may
grant Courthouse News’ request for judicial notice, including of how Defendant’s
own evidence described his policy, since that matter cannot be disputed. Defendant
has not asked for judicial notice and, even if he had, his previous factual contentions
supporting his position are disputed by Courthouse News, so it would be “improper
for the court to consider the declaration[s] and exhibits” in support of his motion
“without converting the motion to dismiss into a motion for summary judgment and
giving [Courthouse News] an opportunity to respond.” Ritchie, 342 F.3d at 909.
4

Defendant wisely does not contend his new policy moots this case. Adarand
27 Constructors v. Slator, 528 U.S. 216, 222 (2000) (“[v]oluntary cessation of
challenged conduct” generally does not moot case); Bell v. Boise, 709 F.3d 890 (9th
28 Cir. 2013) (change in policy that can be changed back cannot moot case).
3
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1

3

I.
DEFENDANT’S MOTION FAILS BECAUSE THE NINTH CIRCUIT HELD
COURTHOUSE NEWS HAS STATED A CLAIM FOR VIOLATION OF
THE RIGHT OF ACCESS TO NEWLY FILED COMPLAINTS

4

Defendant’s motion to dismiss cannot be granted as long as Courthouse News

2

5 has “‘allege[d] “sufficient factual matter ... to state a claim to relief that is plausible
6 on its face.”’” OSU Student Alliance v. Ray, 699 F.3d 1053, 1061 (9th Cir. 2012)
7 (reversing dismissal based in part on time, place and manner analysis). The Court
8 must “treat the factual allegations in CNS’s complaint as true,” and this includes
9 “treat[ing] as true CNS’s factual allegations in the exhibits attached to its

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10 complaint.” Courthouse News, 750 F.3d at 779-80 & n.4. In addition, the Court
11 must “construe [those factual allegations] in the light most favorable to the
12 plaintiff[.]” OSU Student Alliance, 699 F.3d at 1061.
13

Here, the Ninth Circuit recognized Courthouse News has stated a plausible

14 claim for relief: “[T]here is no question that CNS itself has alleged a cognizable
15 injury caused by Ventura County Superior Court’s denial of timely access to newly
16 filed complaints.” Courthouse News, 750 F.3d at 788. The “novel” questions it left
17 open was whether Defendant could “overcome” that claim by establishing a defense
18 that justified Defendant’s denial of same-day access. Id. at 792-93 & n.9.
19

Despite this, most of Defendant’s motion rests on the fallacious notion that

20 “the First Amendment right of access does not attach to the documents at issue in
21 CNS’s Complaint.” MPA 11. This notion not only conflicts with Ninth Circuit law,
22 it is barred by the doctrines of “law of the case” and “rule of mandate.”
23

Under the former, decisions “in a prior appeal must be followed in all

24 subsequent proceedings in the same case.” Eichman v. Fotomat Corp., 880 F.2d
25 149, 157 (9th Cir. 1989). It includes not only a court’s “explicit decisions” but also
26 “those issues decided by necessary implications.” Id. (quotation omitted). Under
27 the latter – which “is similar to, but broader than, the law of the case doctrine,” U.S.
28 v. Cote, 51 F.3d 178, 181 (9th Cir. 1995) – an appellate court’s mandate “precludes
4
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 the district court on remand from reconsidering matters which were either expressly
2 or implicitly disposed of upon appeal.” U.S. v. Miller, 822 F.2d 828, 832 (9th Cir.
3 1987). “The rule of mandate requires that, on remand, the lower court’s actions
4 must be consistent with both the letter and the spirit of the higher court’s decision.”
5 Ischay v. Barnhart, 383 F. Supp. 2d 1199, 1214 (C.D. Cal. 2005).
6

Defendant contends the Ninth Circuit took “no position” on whether the right

7 of access attaches when complaints are newly filed and not yet “subject to some
8 judicial decision.” MPA 2, 11.5 But this contention violates “both the letter and the
9 spirit” of the Ninth Circuit’s ruling. In concluding Pullman abstention did not apply

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10 in this First Amendment case, the Ninth Circuit determined Courthouse News has
11 alleged a viable claim for “violation of the First Amendment right of access” to the
12 documents at issue in the complaint. Courthouse News, 750 F.3d at 788. In finding
13 “no question” that Courthouse News “alleged a cognizable injury caused by [the]
14 denial of timely access to newly filed complaints,” id., the Ninth Circuit disposed of
15 any argument that access does not attach when complaints are “newly filed.”
16

Accordingly, the legal determination that the First Amendment right of access

17 attaches to the documents at issue – i.e., newly filed complaints – is “part of the law
18 of this case,” the “issue was not left open by [the Ninth Circuit’s] mandate” and it
19 “may not be considered again on remand.” Waggoner v. Dallaire, 767 F.2d 589,
20 593 (9th Cir. 1985) (reversing decision violating law of case and rule of mandate).
21
22
23
24
25
26
27
28

5

The Ninth Circuit, of course, said no such thing. Rather, it took “no position on
the ultimate merits of CNS’s claims.” Courthouse News, 750 F.3d at 793. That
means something different than what Defendant contends. First, it means the Ninth
Circuit took no position on whether the evidence would ultimately support those
claims. Second, it took no position whether either of the possible defenses it noted
might overcome the right of access. Id. at 793 n.9. Thus Defendant can try to raise
the time, place and manner defense now, but cannot re-argue that Courthouse News
has not stated a claim for violation of its right of access to newly filed complaints
grounded in the First Amendment freedom of speech (a position he argued
extensively, see Answering Brief 17-20 & 30-35, and lost, in the Ninth Circuit).
5
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1

II.

2

DEFENDANT’S MOTION FAILS BECAUSE THE NINTH CIRCUIT HAS
MADE CLEAR, AND MANY CASES HAVE HELD, COMPLAINTS ARE
RECORDS TO WHICH A RIGHT OF ACCESS ATTACHES WHEN FILED

3
4

Even if “law of the case” and the “rule of mandate” did not bar Defendant

5 from disputing that a First Amendment right of access “attach[es] to the documents
6 at issue in CNS’s Complaint,” MPA 11, his motion fails because the Ninth Circuit’s
7 recognition that Courthouse News has a cognizable right of timely access to newly
8 filed complaints is firmly rooted in both the common law and First Amendment.6
9 As Courthouse News will now show, Defendant can only attempt to seek a contrary

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10 result by ignoring Ninth Circuit law – including a recent case involving the law firm
11 representing Defendant, in which the Ninth Circuit reiterated that “‘[u]nless a
12 particular court record is one traditionally kept secret, a strong presumption in favor
13 of access is the starting point,’” Oliner v. Kontrabecki, 745 F.3d 1024, 1025 (9th
14 Cir. 2014) – and by misstating the law in many of the other circuits.7
15
6

It is also consistent with California law, which tracks the First Amendment. NBC
Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178 (1999). Even if it
17
did not, Defendant errs in claiming state law only allows access to “documents after
18 they have been ‘filed … in the case folder.’” MPA 1 (misquoting Cal. Gov’t Code
§ 68151(a)(1), which defines “court records” to which a right of access attaches as
19
“[1] All filed records and [2] documents in the case folder.”) (brackets added).
20 7 Defendant also tries to redefine “filed” to make it appear Courthouse News seeks
16

21 access to complaints “before they are … filed.” MPA 1. This argument rests on the
fiction that a complaint is unfiled until processed, after which the filing date is
22 backdated to the day it was received. RJN, Exh. 41, ¶¶ 13-16. But in Ventura,
23 complaints are “filed” when received, http://www.ventura.courts.ca.gov/dropbox.html, as they must be. Cal. R. Ct. 1.20(a) (document “deemed filed on the date
24 it is received by the court clerk”). Even if Defendant could draw this distinction, it
25 would make no legal difference, as the Ninth Circuit has reversed an attempt to
“carve[] out [this] exception” to access, rejecting the notion that “if a document is
26 lodged, rather than filed, with the court, it is not a judicial record or document at all
27 and, therefore, the public is generally not entitled to access.” Rocky Mountain Bank
v. Google, 428 Fed. Appx. 690, 692 (9th Cir. 2011) (“the public’s long-standing
28 right cannot be absterged by the simple expedient of having documents lodged”).
6
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 A.
2

Numerous Cases Have Rejected Defendant’s Theory That Complaints
Are Not Public Judicial Records Until They Are Acted On By The Court

3

Recognizing it would “spawn considerable mischief” by “conceal[ing] the

4 very existence of lawsuits from the public,” Standard Chartered Bank Int’l v. Calvo,
5 757 F. Supp. 2d 258, 259-60 (S.D.N.Y. 2010), federal courts have rejected
6 Defendant’s theory that complaints are not judicial records to which a right of
7 access attaches “until they are considered by the court and made the subject of some

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8 judicial decision,” MPA 10-11, including in the situation posited by Defendant
9 where litigants seek to settle before any substantive action by the court. Vassiliades
10 v. Israely, 714 F. Supp. 604, 605-06 (D. Conn. 1989); see Lugosch v. Pyramid Co.,
11 435 F.3d 110, 121 (2d Cir. 2006) (“Defendants read the above reference” – to the
12 main case relied on by Defendant, In re Reporter’s Committee for Freedom of the
13 Press, 773 F.2d 1325 (D.C. Cir. 1985) – “as standing for the proposition that until a
14 district court knows the disposition of the underlying motion, any attempt at calling
15 something a judicial document is premature. This reading cannot stand.”); In re
16 Coordinated Pretrial Proceedings, 101 F.R.D. 34, 42-43 (C.D. Cal. 1984) (rejecting
17 theory that “public access interests … do not attach until, essentially, the judge
18 makes a ruling” because “public access right attaches” when “documents [are]
19 filed for the court’s consideration in a civil case”) (following Brown & Williamson
8
20 Tobacco Corp. v. F.T.C., 710 F.2d 1165 (6th Cir. 1983)).

21

8

Defendant’s motion rests on the reading of Reporter’s Committee rejected by
22 Lugosch. MPA 12-18. Reporter’s Committee did not address complaints, but rather
23 summary judgment, and its theory why those records may not be public until a court
rules on that motion has no bearing here. Moreover, “subsequent decisions have
24 declined to follow the reasoning and approach of the Reporter’s Committee
25 decision” on the very point for which Defendant cites it – that “‘[c]ontemporaneity
of access to written material does not significantly’ enhance the public’s ability to
26 ensure proper functioning of the courts.’” NBC Subsidiary, 20 Cal. 4th at 1220 n.43
27 (quoting Reporter’s Committee, 773 F.2d at 1337 n.9). The cases that reject this
decision include Brown & Williamson and In re Cont’l Ill. Sec. Litig., 732 F.2d 1302
28 (7th Cir. 1984), id., both cited with approval in Courthouse News, 750 F.3d at 786.
7
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1

The reason for this is clear. A “court is a transparent forum.” In re Eastman

2 Kodak Co., 2010 WL 2490982, *1 (S.D.N.Y. June 15, 2010). If parties could
3 convert a publicly funded court into a private tribunal as long as they settle prior to a
4 “judicial decision,” MPA 10, “before long a policy of openness would become a
5 policy of secrecy,” and “[n]othing is more inimical to the values of a democracy than
6 secrecy in any part of government, and the judiciary is an important part of
7 government.” Cook v. First Morris Bank, 719 A.2d 724, 728 (N.J. Super. 1998).
8

Indeed, Defendant’s proposed rule would create the sort of dual-track system

9 – in which the public would have a right of access to files in some cases (where the

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10 court has ruled) but not in others (where it has not) – that then-Judge Kennedy said
11 would harm the judicial system. “Confidence in the accuracy of its records is
12 essential for a court,” but “[s]uch confidence erodes if there is a two-tier system,
13 open and closed.” CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 826 (9th Cir. 1985).
14

Ignoring these cases, Defendant tries to create an alternate universe largely by

15 misstating cases from other circuits. For example, after the sentence in U.S. v.
16 Amodeo quoted by Defendant – “‘[T]he mere filing of a paper or document with the
17 court is insufficient to render that paper a judicial document subject to the right of
18 access,’” MPA 2 – the Second Circuit held the record need only “be relevant to the
19 performance of the judicial function and useful in the judicial process … to be
20 designated a judicial document.” 44 F.3d 141, 145 (2d Cir. 1995).9 Defendant
21 omits that sentence because it clearly applies to complaints when filed. See, e.g., In
22
23
24
25
26
27
28

9

Defendant also overlooks that the Fourth Circuit case he cites held documents “are
judicial records” to which a right of access attaches if “filed with the objective of
obtaining judicial action or relief,” U.S. v. Appelbaum, 707 F.3d 283, 291 (4th Cir.
2013), a holding “in harmony with … several” other cases he cites. Id. at 290-91
(citing In re Providence Journal Co., 293 F.3d 1 (1st Cir. 2002), U.S. v. El-Sayegh,
131 F.3d 158 (D.C. Cir. 1997) and Amodeo, 44 F.3d at 145). And the First Circuit
case he cites holds only “[t]hose documents which play no role in the adjudicative
process, … such as those used only in discovery, lie beyond reach” of the right of
access. FTC v. Standard Financial Mgt. Co., 830 F.2d 404, 408 (1st Cir. 1987).
8
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 re Nvidia Corp. Derivative Litig., 2008 U.S. Dist. LEXIS 120077, *10-11 (N.D.
2 Cal. Apr. 22, 2008) (“[T]his Court cannot conclude sealing parts of a complaint is
3 analogous to sealing records ‘not directly relevant to the merits of the case.’ It
4 establishes the merits of a case, or the lack thereof.”).10
5

In sum, while “‘[t]here may be a historical case to be made that a civil

6 complaint filed with a court, but then soon dismissed pursuant to settlement, is not
7 the sort of judicial record to which there is a presumption of public access,’” MPA
8 11 (quoting IDT Corp v. eBay, Inc., 709 F.3d 1220, 1222-23 (8th Cir. 2013)),
9 Defendant’s theory fails because he overlooks that the “modern trend in federal

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10 cases [is] to treat pleadings in civil litigation (other than discovery motions and
11 accompanying exhibits) as presumptively public, even when the case is pending
12 before judgment … or resolved by settlement.” IDT Corp., 709 F.3d at 1223 (citing
13 San Jose Mercury News v. U.S. Dist. Ct., 187 F.3d 1096 (9th Cir. 1999)).
14 B.
15

In The Ninth Circuit And Most Courts, A First Amendment Right Of
Access Applies To Judicial Records, Such As Complaints, Upon Filing

16

While finding that a document is a judicial record is typically used to

17 establish a common law right of access, cases holding complaints are judicial
18 records also support a First Amendment right of access that, contrary to Defendant’s
19 view, “‘involves a right of contemporaneous access.’” Republic of Philippines v.
20 Westinghouse Elec. Corp., 139 F.R.D. 50, 60 (D.N.J. 1991) (quoting In re Cont’l Ill.
21 Sec. Litig., 732 F.2d 1302, 1310 (7th Cir. 1984)), aff’d, 949 F.2d 653 (3d Cir. 1991).
22
23
24
25
26
27
28

10

Accord Standard Chartered Bank, 757 F. Supp. 2d at 259-60 (complaint meets
Second Circuit “‘judicial document’” test because it is one of the “important papers
… which underpin a civil action and give the federal court jurisdiction over the
matter”); Vassiliades, 714 F. Supp. at 605-06 (rejecting argument complaint should
not be public at filing to allow parties to settle quickly); Eastman Kodak, 2010 WL
2490982 at *1 (rejecting argument complaint “‘[p]lays no role in the performance of
[a Court’s] Article III functions’” because it “forms the basis of a civil action and
invokes the jurisdiction of the court”); U.S. ex rel. Dahlman v. Emergency
Physicians, 2004 U.S. Dist. LEXIS 31304, *3-4 (D. Minn. Jan. 5, 2004) (complaint
is a “‘judicial record’” under Nixon v. Warner Comm’ns, 435 U.S. 589, 597 (1978)).
9
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1

That is because “[t]he common law presumption that the public may inspect

2 judicial records has been the foundation on which the courts have based the first
3 amendment right of access to judicial proceedings.” Anderson v. Cryovac, Inc., 805
4 F.2d 1, 13 (1st Cir. 1986); accord Hartford Courant Co. v. Pellegrino, 380 F.3d 83,
5 92 (2d Cir. 2004). While Defendant cites cases discussing a narrower view of the
6 records to which the constitutional right attaches, he overlooks that in most circuits,
7 including the Ninth, “the public and press have a first amendment right of access to
8 pretrial documents in general.” Associated Press, 705 F.2d at 1145;11 accord
9 Oregonian Pub. Co. v. U.S. Dist. Ct., 920 F.2d 1462, 1463-65 (9th Cir. 1990).

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10

While these decisions involved records filed in criminal cases, the Supreme

11 Court and Ninth Circuit – among many other courts – have recognized “there is no
12 principled basis upon which a public right of access to judicial proceedings can be
13 limited to criminal cases.” Gannett Co. v. DePasquale, 443 U.S. 368, 387 n.15
14 (1979); EEOC v. Erection Co., 900 F.2d 168, 169 (9th Cir. 1990) (finding “no …
15 support for [a] distinction” between access to “civil proceedings … [and] criminal
16 prosecutions”); Cont’l Ill. Sec. Litig., 732 F.2d at 1308 (“[W]e agree with the Sixth
17 Circuit that the policy reasons for granting public access to criminal proceedings
18 apply to civil cases as well.”) (citing Brown & Williamson, 710 F.2d at 1179).
19

The two latter cases were cited with approval in Courthouse News, 750 F.3d

20 at 786, which made clear the Ninth Circuit will join those courts that “have widely
21 agreed that [First Amendment access] extends to civil proceedings and associated
22 records.” Id. (also citing N.Y. Civil Lib. Union v. NYC Transit Auth., 684 F.3d 286
23 (2d Cir. 2011); Publicker Indus. v. Cohen, 733 F.2d 1059 (3d Cir. 1984); and NBC
24
11

Defendant never addresses Associated Press except to selectively quote the
concurrence, MPA 10, which took issue with the position – adopted by the majority
26 and thus binding on this Court – that “the press has [a] right to immediate
27 inspection.” 705 F.2d at 1149 (Poole, J., concurring). Moreover, the concurrence
was not arguing the press generally cannot have access before a court reviews a
28 document, but was advocating for “‘in-camera inspection’” of certain records. Id.
25

10
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178 (1999)).
2

As these cases illustrate, courts “have articulated two different approaches for

3 determining whether ‘the public and the press should receive First Amendment
4 protection in their attempts to access certain judicial documents.’” Lugosch, 435
5 F.3d at 120 (quoting Hartford Courant, 380 F.3d at 92). The first is “[t]he so-called
6 ‘experience and logic’ approach …. ‘The courts that have undertaken this type of
7 inquiry have generally invoked the common law right of access to judicial
8 documents in support of finding a history of openness.’” Id. “The second approach
9 considers the extent to which the judicial documents are ‘derived from or [are] a

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10 necessary corollary of the capacity to attend the relevant proceedings.’” Id.
11

Like the Second Circuit, the Ninth has followed the second approach with

12 respect to pretrial records. Id. at 124 (“‘First Amendment right of access attaches’”
13 to “‘documents submitted in connection with judicial proceedings that themselves
14 implicate the right of access’”) (quoting In re New York Times, 828 F.2d 110, 114
15 (2d Cir. 1987) (citing Associated Press, 705 F.2d at 1145). Under this approach,
16 access attaches to “civil litigation documents filed in court as a basis for
17 adjudication,” NBC Subsidiary, 20 Cal. 4th at 1208 n.2512 – such as “a complaint,”
18 which “forms the basis of a civil action,” Eastman Kodak, 2010 WL 2490982 at *1 –
19 because they are “essential” for the public to monitor the proceedings, id., and know
20 a case has been filed. Vassiliades, 714 F. Supp. at 606; Pena v. Schwartz, 853 F.
21 Supp. 164, 166-67 (D. Md. 1994) (First Amendment access attaches to complaint).
22

As Courthouse News will now show, application of the “experience and

23 logic” approach also confirms that the First Amendment provides a right “of timely
24 access to newly filed complaints.” Courthouse News, 750 F.3d at 788.
25

12

California thus does not hold a “complaint is not subject to First Amendment right
26 of access until ‘it is … used in some manner by the court.’” MPA 11 (misquoting
th
27 Mercury Interactive Corp. v. Klein, 158 Cal. App. 4 60, 89-90 (2007), which
actually said “discovery material is subject to public access … when it is filed with
28 the court and is used in some manner by the court ‘as a basis for adjudication’”).
11
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1

III.

2

DEFENDANT’S MOTION FAILS BECAUSE THE NINTH CIRCUIT HAS
FOUND A RIGHT OF IMMEDIATE ACCESS TO PRETRIAL RECORDS,
WHICH EXPERIENCE AND LOGIC SHOW APPLIES TO COMPLAINTS

3
4

In a series of cases, the Supreme Court held that the right of the press and

5 public “to attend … hear, see, and communicate observations” about criminal court
6 proceedings was fully protected by the First Amendment “freedoms … of speech
7 and press.” Richmond Newspapers v. Virginia, 448 U.S. 555, 575-76 (1980);
8 accord, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982);
9 Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (“Press-Enterprise I”);

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10 Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (“Press-Enterprise II”).
11

Those cases noted “[t]wo features of the criminal justice system … together

12 serve to explain why a right of access to criminal trials … is properly afforded
13 protection by the First Amendment.” Globe Newspaper, 457 U.S. at 605. “First, the
14 criminal trial historically has been open to the press and general public.” Id.
15 “Second, the right of access to criminal trials plays a particularly significant role in
16 the functioning of the judicial process and the government as a whole.” Id. at 606.
17

These are “complementary considerations,” Press-Enterprise II, 478 U.S. at

18 8, and one “alone, even without [the other], may be enough to establish the right”:
19

Though our cases refer to ... the “experience and logic” test, it’s clear

20

that these are not separate inquiries. Where access has traditionally

21

been granted to the public without serious adverse consequences, logic

22

necessarily follows. It is only where access has traditionally not been

23

granted that we look to logic. If logic favors disclosure in such

24

circumstances, it is necessarily dispositive.

25 In re Copley Press, Inc., 518 F.3d 1022, 1026 & n.2 (9th Cir. 2008). Both of these
26 “two principal justifications … apply, in general, to pretrial documents,” Associated
27 Press, 705 F.2d at 1145, and complaints in particular. See, e.g., Standard Chartered
28 Bank, 757 F. Supp. 2d at 259; Dahlman, 2004 U.S. Dist. LEXIS 31304 at *3-4.
12
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 A.

There Is A Strong, Clear History Of Access To Complaints “When Filed”

2

In Associated Press, the Ninth Circuit recognized the history of public access

3 to pretrial records supported a First Amendment right of access: “There can be little
4 dispute that the press and public have historically had a common law right of access
5 to most pretrial documents.” 705 F.2d at 1145. There is also no dispute this “long6 standing public policy [of] open access [applies] to complaints.” Dahlman, 2004
7 U.S. Dist. LEXIS 31304 at *3-4; see, e.g., Campbell v. New York Evening Post, Inc.,
8 157 N.E. 153, 155 (N.Y. 1927) (“The pleadings in an action … may be filed in the
9 office of the county clerk, ... and when so filed they become public documents.”).13

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10

As Courthouse News alleges, there is a tradition of access by the end of the

11 day a complaint is filed in nearly all federal and most state courts. Am. Comp., ¶¶
12 10-14, Exh. 1.14 State statutes and rules confirm the public nature of court records,
13 including complaints, when filed. RJN, ¶¶ 1(a)-(mm), Exhs. 1-39.15 Combined with
14 the cases cited herein, this shows that at least 41 states allow access upon filing.16
15
16

13

See also Lybrand v. The State Co., 184 S.E. 580, 583 (S.C. 1936) (“summons and
17 complaint” must be filed with “clerk of the court” and “when so filed … become
public documents in a public office”); Bull v. LogEtronics, Inc., 323 F. Supp. 115,
18 135 (E.D. Va. 1971) (complaint “when filed, became a public record”); In re Globe
19 Newspaper Co., 958 N.E.2d 822, 828-29 (Mass. 2011) (“once a document is filed
…it is a public record” unless a judge finds “good cause” to impound it).
20 14
The two cases cited by Defendant are not to the contrary, as ACLU v. Holder, 652
21 F. Supp. 2d 654 (E.D. Va. 2009), involved a “qui tam complaint,” which “must [be]
22 file[d] … under seal,” id. at 662, and U.S. Tobacco v. Big South Wholesale of Va.,
2013 U.S. Dist. LEXIS 165638 (E.D.N.C. Nov. 21, 2013), simply cited Holder
23 without discussing the difference between qui tam and other complaints. Id. at *8.
15

None of the statutory provisions require a showing of “interest” to justify access,
as some old cases cited by Defendant once required, because the “Supreme Court
25
has made it plain that all persons seeking to inspect and copy judicial records stand
26 on equal footing, regardless of their motive for inspecting such records.” Leucadia,
Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 167 (3d Cir. 1993).
27 16
This showing distinguishes the instant case from IDT, in which plaintiff failed to
28 plead or present evidence establishing a tradition of access. 709 F.3d at 1224.
24

13
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1

Defendant contends all this history is insufficient if it is not unbroken in all

2 states going back to the founding of the republic and, before that, England. As
3 Defendant surely must know, this is pure poppycock. While Richmond Newspapers
4 found an “‘unbroken, uncontradicted history’” supported access to trials, MPA 12
5 (quoting 448 U.S. at 573), such a history is “not required.” Detroit Free Press v.
6 Ashcroft, 303 F.3d 681, 700 (6th Cir. 2002). As that case noted in rejecting this
7 theory, the “Supreme Court effectively silenced this argument in Press-Enterprise
8 II,” and “Courts of Appeals have similarly not required such a showing.” Id. (citing,
9 e.g., Cal-Almond, Inc. v. U.S. Dep’t of Ag., 960 F.2d 105 (9th Cir. 1992)).

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10

Rather, all that is required is a “tradition of accessibility [that] implies the

11 favorable judgment of experience.” Globe Newspaper, 457 U.S. at 605 (quotation
12 omitted). That need not be long; while “the tradition of openness must be strong[,]
13 … a showing of openness at common law is not required.” Delaware Coalition for
14 Open Gov’t, Inc. v. Strine, 733 F.3d 510, 515 (3d Cir. 2013) (quotation omitted).
15

Indeed, the Ninth and other circuits have found a “history of access … by

16 reviewing current state statutes” like the ones compiled here. Detroit Free Press,
17 303 F.3d at 700 (describing Cal-Almond, 960 F.2d at 109); Seattle Times Co. v. U.S.
18 Dist. Ct., 845 F.2d 1513, 1516 (9th Cir. 1988) (citing Bail Reform Act of 1984 to
19 show tradition of access, even though bail proceedings “do not share with criminal
20 trials an unbroken history of public access,” because changes in “pretrial procedures
21 in the modern era” make “historical tradition ... much less significant”); Whiteland
22 Woods, L.P. v. Township of W. Whiteland, 193 F.3d 177, 181 (3d Cir. 1999) (“no
23 hesitation” finding “constitutional right of access” based on 30-year old statute).
24

Thus, while it is true that 140 years ago then-Judge Holmes discerned a “plain

25 distinction between what takes place in open court, and ... the contents of a paper
26 filed … in the clerk’s office” for purposes of the fair report defense to a libel claim,
27 Cowley v. Pulfiser, 137 Mass. 392, 395 (1884) – and “some courts [at the time] …
28 followed Cowley” – it is also irrelevant because in 1927 the trend began to reverse
14
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 when New York “rejected Cowley.” American Dist. Tel. Co. v. Brink’s Inc., 380
2 F.2d 131, 132-33 (7th Cir. 1967) (citing Campbell, 157 N.E. at 155-56). “Similar
3 rulings have been made by other states,” id.,17 and “the weight of modern authority”
4 now applies the defense to “filed pleadings that have not yet come before a judicial
5 officer” because they are “[p]ublic documents to which citizens … have free
6 access.” Salzano v. North Jersey Media Group, 993 A.2d 778, 790 (N.J. 2010).18
7 B.

There Is A Well-Established Logic In Access To Complaints When Filed

8

The Ninth Circuit found a right of immediate access to “pretrial documents”

9 because they “are often important to a full understanding of the way in which ‘the

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10 judicial process and the government as a whole’ are functioning.” Associated Press,
11 705 F.2d at 1145 (quoting Globe Newspaper, 457 U.S. at 605). The only question,
12 then, is whether there is anything different about a complaint that could justify a
13 different conclusion. The answer clearly must be – and is – a resounding “no.”
14

This question turns on whether the process operates best under public scrutiny

15 or secrecy. Press-Enterprise II, 478 U.S. at 8-9 (“Although many governmental
16 processes operate best under public scrutiny, … some … would be totally frustrated
17 if conducted openly.”). The judicial system works best under public scrutiny. Id.
18

17

Citing, e.g., Langford v. Vanderbilt Univ., 287 S.W.2d 32, 37 (Tenn. 1956); Torski
v. Mansfield Journal Co., 137 N.E.2d 679, 683-84 (Ohio App. 1956); see Kurata v.
20 L.A. News Pub. Co., 4 Cal. App. 2d 224, 227 (1935) (rejecting theory that a “‘mere
pleading, … unanswered and not having been placed within the scrutiny of any court
21
or judge, is not a ‘judicial proceeding’” because “a lawsuit from beginning to end is
22 in the nature of a judicial proceeding, the filing of the complaint being the first step
therein ... [is] a public and official act in the course of judicial proceedings”).
23
18
Shiver v. Valdosta Press, 61 S.E.2d 221, 413 (Ga. App. 1950) (“this suit became a
24 matter of public record the moment it was marked filed in the clerk’s office”);
25 Charlottesville Newspapers, Inc. v. Berry, 206 S.E.2d 216, 217-18 (Va. 1974)
(overturning order that “public be denied access to the pleadings, motions and suit
26 papers in all new civil actions … until 21 days have elapsed from the date of such
27 filing”); Estate of Hearst, 67 Cal. App. 3d 777, 782 (1977) (“there can be no doubt
that court records are public records, available to the public in general, including
28 news reporters, unless a specific exception makes specific records nonpublic”).
19

15
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 Access to “complaint[s]” is essential to this process because they are “essential to
2 the Court’s adjudication” and “the public’s interest in monitoring … courts.”
3 Eastman Kodak, 2010 WL 2490982 at *1. It is thus “highly doubtful that
4 ‘California could decide not to give out [the complaints] at all without violating the
5 First Amendment.’” Courthouse News, 750 F.3d at 784-85.
6

Flying in the face of this logic, Defendant contends there is no value in access

7 at filing on the theory that, until it is acted on, there is “no justice to be observed,”
8 and complaints are “purely private pleadings.” MPA 11, 19, 21. His extraordinary
9 view of complaints – as private documents rather than fundamentally public records

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10 the press and public have a right to review in a timely manner – provides perhaps
11 the best insight yet why there have been delays in access of days and weeks at
12 Ventura Superior even as other courts routinely provide same-day access. But his
13 view is as outdated as the 19th Century cases on which he must necessarily rely.
14

“[A]n action is commenced by the filing in the office of the clerk … a petition

15 stating the plaintiff’s cause of action …. [W]hen that is done the controversy is no
16 longer a private one between two individuals, but is in all respects a judicial
17 proceeding.” Paducah Newspapers v. Bratcher, 118 S.W.2d 178, 180 (Ky. App.
18 1937); In re Johnson, 598 N.E.2d 406, 410 (Ill. App. 1992) (“Once … filed with the
19 court, they lose their private nature and become part of the court file and ‘public
20 components’ of the judicial proceeding to which the right of access attaches.”).
21

Treating complaints as private until acted upon would “interfere with … the

22 public’s right to monitor activities in [the] courts.” Standard Chartered Bank, 757
23 F. Supp. 2d at 259. “The filing of the complaint is likely to be the first occasion that
24 the public could become aware of the dispute.” Vassiliades, 714 F. Supp. at 606.
25 Absent access, there is often no way to know a lawsuit has been filed; even if alerted
26 to the suit by the filing party or docket sheet, the press and public would have no
27 details about “the parties … and the alleged” claims. Eastman Kodak, 2010 WL
28 2490982 at *1. That would “effectively block the public’s access to a significant
16
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 segment of our [civil] justice system.” Oregonian Pub., 920 F.2d at 1465.
2

It would also harm the public interest. Republic of Philippines, 949 F.2d at

3 664. “‘[S]ecrets buried in court records, literally, kill and maim.’” Doggett &
4 Mucchetti, Public Access to Public Courts: Discouraging Secrecy in the Public
5 Interest, 69 Tex. L. Rev. 643, 648 (1991). The public may never learn of “lawsuits
6 over toxic spills … settled in secret,” a “faulty heart valve” that “could be killer” or
7 playground equipment alleged to be dangerous. Id. at 648-49.19
8

That is why courts reject both the notion that complaints are “of a private

9 nature,” Stapp v. Overnite Transp. Co., 1998 U.S. Dist. LEXIS 6412, *3-4 (D. Kan.

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10 Apr. 9, 1998), and attempts to restrict public access. Nvidia, 2008 U.S. Dist. LEXIS
11 120077 at *10-11 (“While a complaint is not, per se, the actual pleading by which a
12 suit may be disposed of, it is the root, the foundation, the basis by which a suit arises
13 and must be disposed of. … [I]t is the means by which a plaintiff invokes the
14 authority of the court, a public body, to dispose of his or her dispute …. [W]hen a
15 plaintiff invokes the Court’s authority by filing a complaint, the public has a right to
16 know who is invoking it, and towards what purpose, and in what manner.”).
17

19

As this illustrates, the modern view that a complaint is an important pleading to
18 which public access upon filing is essential flows from changes in litigation. Until
19 promulgation of the Federal Rules of Civil Procedure in 1938 – and similar rules in
most states – there was little pre-trial activity, and the parties moved quickly to trial
20 after the pleadings. Sward, A History of the Civil Trial in the United States, 51 U.
21 Kan. L. Rev. 347, 350-86 (2003). Since then, there has been a “transformation of
the trial – limited in time and space – into litigation, which can be quite lengthy and
22 need not culminate in a trial at all.” Id. at 406. Moreover, “[t]here were no multi23 million or billion dollar lawsuits, … or even many of the legal rights of action
plaintiffs now take for granted. ... Product liability law … did not exist then as it
24 does today.” Schwartz & Appel, Rational Pleading in the Modern World of Civil
25 Litigation: The Lessons and Public Policy Benefits of Twombly and Iqbal, 33 Harv.
J.L. & Pub. Pol’y 1107, 1129-31 (2010). Because “an increasing number of
26 society’s problems are resolved through the judicial process,” courts now recognize
27 “the entire judicial system from the filing of a complaint until final decision before
the highest court of review should be exposed to the bright light of public scrutiny.”
28 Newell v. Field Enters., 415 N.E.2d 434, 444-46 (Ill. App. 1980).
17
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 C.

History And Logic Thus Confirm A Right Of Contemporaneous Access

2

As experience and logic confirm, the right of access “begins when a judicial

3 document is filed.” Atlanta Journal v. Long, 369 S.E.2d 755, 758 (Ga. 1988). It
4 cannot “be suspended or nonexistent until after the judge has ruled,” as that would
5 violate “the important interest in contemporaneous review,” Coordinated Pretrial
6 Proceedings, 101 F.R.D. at 43, and “‘unduly minimize[], if ... not entirely overlook,
7 the value of “openness” itself, a value which is threatened whenever immediate
8 access … is denied.’” Courthouse News Serv. v. Jackson, 2009 U.S. Dist. LEXIS
9 62300, *11-12 (S.D. Tex. July 20, 2009) (quoting In re Charlotte Observer, 882

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10 F.2d 850, 856 (4th Cir. 1989)). “In light of the values which the presumption of
11 access endeavors to promote, a necessary corollary … is that once found to be
12 appropriate, access should be immediate and contemporaneous.” Id. at *11 (quoting
13 Grove Fresh Distribs. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)).20
14

It necessarily follows that even a “24 to 72 hour delay in access is effectively

15 an access denial and is, therefore, unconstitutional,” id., because “[t]he effect … is a
16 total restraint on the public’s first amendment right of access even though the
17 restraint is limited in time.” Associated Press, 705 F.2d at 1147.
18

This does not mean, as Defendant asserts, that Courthouse News seeks a

19 ruling that “all courts,” at all times, must provide same-day access. MPA 12.
20 Rather, the question here, as in any case, is whether a defense can “overcome” that
21 right and justify denying access for a period of time. Courthouse News, 750 F.3d at
22 792-93 & n.9. Unable to show “an ‘overriding [governmental] interest based on
23

20

See Lugosch, 435 F.3d at 126 (“Our public access cases and those in other circuits
24 emphasize the importance of immediate access where a right to access is found.”);
25 U.S. v. Wecht, 537 F.3d 222, 229 (3d Cir. 2008) (“the value of … access would be
seriously undermined if it could not be contemporaneous”); Company Doe v. Pub.
26 Citizen, 749 F.3d 246, 272 (4th Cir. 2014) (“Because the public benefits attendant
27 with open proceedings are compromised by delayed disclosure of documents, we …
emphasize that the public and press generally have a contemporaneous right of
28 access to court documents and proceedings when the right applies.”).
18
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 findings that closure is essential to preserve higher values,’” id., Defendant does not
2 assert that defense. Instead, he says “[t]he delay in making the complaints available
3 [is] analogous to a permissible ‘reasonable restriction[] on the time, place, or
4 manner of protected speech.’” Id. But that defense also fails because the Ninth
5 Circuit rejects the use of time, place and manner to justify a “delay ‘of even a day or
6 two.’” NAACP, Western Region v. Richmond, 798 F.2d 1346, 1356 (9th Cir. 1984).
IV.

8
9

FINALLY, DEFENDANT’S MOTION FAILS BECAUSE THE NINTH
CIRCUIT PROHIBITS USE OF TIME, PLACE AND MANNER ANALYSIS
TO JUSTIFY DELAYS IN EXERCISING FIRST AMENDMENT RIGHTS

10
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7

As the Ninth Circuit has instructed, “[c]ertain general principles of First

11 Amendment law guide [the Court’s] analysis.” Comite de Jornaleros de Redondo
12 Beach v. Redondo Beach, 657 F.3d 936, 944 (9th Cir. 2011) (en banc). First among
13 those is that “‘[w]hen the Government restricts speech, the Government bears the
14 burden of proving the constitutionality of its actions,’” id., including “regulation of
15 the time, place, or manner” (“TPM”) of speech. Id. at 947. Contrary to Defendant’s
16 attempt to put the burden on Courthouse News, MPA 3, 21-22, “‘[D]efendant bears
17 the burden of pleading and proving it.’” Kraus v. Presidio Trust Facilities Div., 572
18 F.3d 1039, 1046 n.7 (9th Cir. 2009). He has not and cannot carry that burden.
19 A.
20

As The Ninth Circuit Has Held, Denying Access For Even A Limited
Time Must Satisfy Strict Scrutiny And Is Not Merely A TPM Restriction

21

Conceding “a complete denial of a First Amendment access right must be

22 necessitated by a compelling governmental interest,” Defendant insists denying
23 access for “days or weeks,” Courthouse News, 750 F.3d at 779, is not a complete
24 denial and thus is subject to TPM analysis. MPA 22-23. For this theory, he cites
25 three cases applying TPM to courtroom access, one case that did not apply TPM, a
26 district court decision contrary to Ninth Circuit law, and no Ninth Circuit authority.
27

None of the courtroom access cases hold a delay need only satisfy TPM

28 analysis. “The passage … in Richmond Newspapers … – upon which [Defendant]
19
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 relies for its ‘time, place, and manner’ analogy – addresses only reasonable
2 restrictions necessary to maintain courtroom decorum and to resolve problems
3 relating to seating capacity.” NBC Subsidiary, 20 Cal. 4th at 1225 n.53. A
4 restriction that “limits the underlying right of access rather than regulating the
5 manner in which that access occurs,” Whiteland Woods, 193 F.3d at 183, must meet
6 the “compelling governmental interest” test. Globe Newspaper, 457 U.S. at 607 &
7 n.17; cf. U.S. v. Hastings, 695 F.2d 1278, 1282 & n.11 (11th Cir. 1983) (rule
8 allowing press to attend “any portion of a criminal trial,” but not photograph or
9 televise it, is a TPM restriction because it did not “‘deny or unwarrantedly abridge’”

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10 what could be seen and communicated) (quoting Richmond Newspapers).
11

For that reason, courts reject Defendant’s theory that TPM can be used to

12 justify “‘[d]elaying media access.’” NBC Subsidiary, 20 Cal. 4th at 1220 n.42
13 (“[a]lthough the trial court did not impose a prior restraint on the publication of
14 information, it did close the courtroom and temporarily seal the hearing transcripts,
15 thereby precluding access to information in the first instance. … [T]he latter acts
16 clearly are subject to ‘exacting First Amendment scrutiny.’”); Ridenour v. Schwartz,
17 875 P.2d 1306, 1309 (Ariz. 1994) (delaying access after 3 p.m. until next day was
18 “unconstitutional denial of public access” because it “partially close[d] the court”).
19

The Ninth Circuit used a similar analysis to hold that a court delaying access

20 to pretrial records must “establish that the procedure ‘“is strictly and inescapably
21 necessary”’” to protect a compelling interest. Associated Press, 705 F.2d at 1145.
22 That is because such a delay is a “total restraint” on access for the time it is
23 imposed, id. at 1147, thus requiring strict scrutiny. MPA 22.21
24
21

“Because delay in access can result in such serious First Amendment harm,” even
cases cited by Defendant “do not find that such a [temporary] seal is a mere time,
26 place, and manner restriction, to be sustained if it is merely reasonable.”
27 Reporter’s Committee, 773 F.2d at 1354 n.25 (Wright, J., concurring and dissenting
in part); see also Amodeo, 44 F.3d at 147 (excluding “public …, temporarily or
28 permanently, from … the records” must meet substantive test for closure).
25

20
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1

Another court has rejected Defendant’s argument that a “‘slight delay’ in

2 availability” of new complaints “is a reasonable time, place, or manner restriction.”
3 Courthouse News, 2009 U.S. Dist. LEXIS 62300 at *1. Two others recognized that
4 “time, place, and manner” analysis could only justify delay in access until “the end
5 of the [court] day,” at which point “the press and news media shall have access to all
6 evidence admitted … that day.” U.S. v. Hernandez, 124 F. Supp. 2d 698, 703, 706
7 (S.D. Fla. 2000); U.S. v. Sampson, 297 F. Supp. 2d 342, 345-47 (D. Mass. 2003).
8

Ignoring these cases, Defendant cites only Barber v. Conradi, 51 F. Supp. 2d

9 1257 (N.D. Ala. 1999). But in that case, the Eleventh Circuit reversed the grant of a

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10 motion to dismiss, after which defendant sought summary judgment based on the
11 burden imposed by a pro se plaintiff’s claim for access to 4,200 files, id. at 1258-67
12 – a far cry from the “approximately 8” complaints received each day in Ventura.
13 RJN, Exh. 41, ¶ 14. The court cited no authority to support its theory that a two14 hour-per-week limit was not a “total denial of access” and thus a TPM restriction,
15 51 F. Supp. 2d at 1267 – even though it would take plaintiff 58 weeks to access all
16 the files at 72 per week, id. at 1260 – and did not address any cases to the contrary,
17 such as the Ninth Circuit’s holding that a delay of 48 hours was a total denial of
18 access. Associated Press, 705 F.2d at 1147. A district court decision – at a different
19 procedural point on different facts – cannot trump Ninth Circuit law to the contrary.
20 B.
21

As The Ninth Circuit Also Held, Defendant’s Policy Fails TPM Scrutiny
Because He Cannot Carry His Burden Of Justifying The Delay In Access

22

Even if TPM could apply, the test this Court must apply is not the Eleventh

23 Circuit test Defendant cites, MPA 22, but the Ninth Circuit test, under which a TPM
24 restriction must [1] be “‘justified without reference to the content of the regulated
25 speech, … [2] narrowly tailored to serve a significant governmental interest, and …
26 [3] leave open ample alternative channels for communication of the information.’”
27 Comite, 657 F.3d at 945 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791
28 (1989) (brackets added). Defendant does not attempt to, and cannot, meet this test.
21
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1

1. Defendant’s Policy Is Not Content-Neutral Because It Requires
Review Of Content To Approve Complaints For Public Viewing

2

Defendant did not address this threshold test because his policy – which

3

4 requires staff “to examine the contents” of complaints – is “content-based.” S.O.C.,
5 Inc. v. County of Clark, 152 F.3d 1136, 1145 (9th Cir. 1998); Ward, 491 U.S. at 791
6 (“content neutral” means “‘justified without reference to the content’”).
Defendant’s policy clearly references content. It provides that complaints
7

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8 “are not ready for review, by the press or other members of the general public,” until
9 they are “approved” for public viewing. RJN, Exh. 41, ¶ 34. Staff must “reject[]”
10 complaints that are “incomplete,” and are not supposed to let the public know they
11 were even filed. Id. They are also supposed to withhold “confidential” information.
12 Id., ¶ 39. Because staff “must examine the speech to determine if it is acceptable,”
13 Defendant’s policy “is content-based” and “presumptively unconstitutional.”
14 United Bhd. of Carpenters v. NLRB, 540 F.3d 957, 964-65 (9th Cir. 2008).
2. Defendant Has Not And Cannot Demonstrate That His Policy Is
Narrowly Tailored To Serve A Significant Governmental Interest

15
16

Even if it could be “‘justified without reference to the content,’” the policy

17
18
19
20
21
22
23
24
25
26

“must also be ‘narrowly tailored to serve a significant governmental interest.’”
Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1064 (9th Cir. 2010).
Defendant says his policy serves “efficient administration,” the “integrity of civil
complaints” and the “privacy of third parties.” MPA 23-24. But “‘merely invoking
interests ... is insufficient.’” Klein v. San Clemente, 584 F.3d 1196, 1202 (9th Cir.
2009). Defendant must not only show these interests are “sufficiently significant” to
justify his policy, he “‘must also show that the proposed communicative activity
endangers those interests.’” Id. at 1202-03 & n.5.22
22

Citing, e.g., Bay Area Peace Navy v. U.S., 914 F.2d 1224, 1228 (9th Cir. 1990)
27 (TPM restriction may not be based “on mere speculation about danger”); S.O.C.,
152 F.3d at 1146 (“no evidence … to support an assumption that ‘commercial’
28 handbillers are the inherent cause of … pedestrian flow problems”).
22
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

Defendant has not shown his interests are “significant in the abstract,”23 but

1

2 even if he had, the requirement that he prove “a genuine nexus between the [policy]
3 and the interest[s] it seeks to serve,” John v. Minneapolis Park & Rec. Bd., 729 F.3d
4 1094, 1099 (8th Cir. 2013); Klein, 584 F.3d at 1201-02, precludes prevailing at this
5 stage. Vivid Entm’t v. Fielding, 965 F. Supp. 2d 1113, 1125-27 (C.D. Cal. 2013)
6 (denying 12(b)(6) motion on TPM grounds for this reason); Kahle v. Villaflor, 2012
7 U.S. Dist. LEXIS 9118, *43-44 (D. Haw. Jan. 26, 2013) (denying 12(c) motion).
8

Defendant also does not argue his policy is narrowly tailored, nor could he.

9 “To satisfy the narrow tailoring requirement, ‘[Defendant] ... bears the burden of

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10 showing that the remedy [he] has adopted does not “burden substantially more
11 speech than is necessary to further the government’s legitimate interests.”’” Comite,
12 657 F.3d at 948 (quoting Ward, 491 U.S. at 799). Defendant says denying access
13 until after processing is necessary to protect his interests. MPA 23-24. But his acts
14 say otherwise. After the Ninth Circuit ruled, Defendant began providing access to
15 new complaints on the “same day” they are received, “prior to processing.” RJN,
16 Exh. 40. Defendant’s own actions show same-day access does “not cause the types
17 of problems that motivated the [policy],” Comite, 657 F.3d at 948, and thus delaying
18 access “restricts significantly more speech than is necessary.” Id. at 948.
19

Moreover, Defendant’s new policy is a “less restrictive means of achieving

20 [his] stated goals.” Comite, 657 F.3d at 949. The Ninth Circuit identified several
21 others. Courthouse News, 750 F.3d at 791. The presence of “a number of feasible,
22 readily identifiable, and less-restrictive means of addressing [Defendant’s] concerns”
23

23

That “efficient administration” justified restricting access in one extreme case,
24 Barber, 51 F. Supp. 2d at 1267, cannot trump the general rule that “administrative
25 burdens” are “not sufficient to override” the right of “same-day access.” In re
Associated Press, 172 Fed. Appx. 1, 5-6 (4th Cir. 2006) (citing cases). The danger
26 of “loss or destruction of the original[s]” is insufficient since “duplicates” can be
27 used and history shows “no reasonable possibility” of harm. Valley Broadcasting v.
U.S. Dist. Ct, 798 F.2d 1289, 1295 (9th Cir. 1986). And the privacy of third parties
28 cannot justify a TPM rule because, inter alia, it requires reference to the content.
23
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1 means his policy “is not narrowly tailored.” Comite, 657 F.3d at 950; Klein, 584
2 F.3d at 1201; Edwards v. Coeur D'Alene, 262 F.3d 856, 866 (9th Cir. 2001).
3
4
5

3. Defendant Does Not Explain How The Delays Inherent In His Policy
Allow Effective Communication To An Audience For Immediate News
Alternative channels are “constitutionally inadequate if the speaker’s ‘ability

6 to communicate effectively is threatened.’” Bay Area Peace Navy, 914 F.2d at
7 1229. A policy that “effectively prevents a speaker from reaching his intended

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8 audience, … fails to leave open ample alternative means of communication.”
9 Edwards, 262 F.3d at 866. When a speaker seeks to engage in “[i]mmediate speech
10 … on immediate issues,” allowing it to communicate later is inadequate because it
11 does not effectively reach the intended audience. Richmond, 743 F.2d at 1355-56.
12 “[D]issemination delayed is dissemination denied.” Id. at 1356.
Courthouse News seeks same-day access because its audience wants
13
14 immediate reports about “matters of public interest” in complaints filed that day.
15 Courthouse News, 750 F.3d at 779 n.1, 780, 788 & n.7; Am. Comp., ¶¶ 15-19.
16 “[T]he delay inherent” in Defendant’s policy – even if only for one business day –
17 prevents Courthouse News from effectively reaching that audience. Richmond, 743
th
18 F.2d at 1355 (citing Rosen v. Port of Portland, 641 F.2d 1243, 1249 (9 Cir. 1981))
19 (striking down ordinance requiring one business day’s advance notice). That is

20 because “[a] delay ‘of even a day or two’ may be intolerable” where, as here, “‘the
21 element of timeliness may be important.’” Id. at 1356.
22

By failing to address this issue, let alone explain how his policy permits

23 Courthouse News to provide “fast-breaking” news to an audience for whom “time24 sensitive” reports are important, Long Beach Area Peace Network v. Long Beach,
25 522 F.3d 1010, 1036 (9th Cir. 2008), as amended, 574 F.3d 1011 (9th Cir. 2009),
26 Defendant “failed to meet [his] burden of showing that there are ample alternative
27 channels” for Courthouse News to communicate effectively with its audience for
28 same-day reports about complaints. Comite, 657 F.3d at 957 (Smith, J., concurring).
24
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)

1
2

CONCLUSION
The fatal flaws in Defendant’s position include not just that it conflicts with

3 settled law in the Ninth Circuit and beyond. It would also be horrible public policy.
4

Despite Defendant’s effort to obscure the forest with the trees, he cannot hide

5 that the position he advocates would carve out complaints from the constitutional
6 command that pretrial records must be available for public review upon filing,
7 Associated Press, 705 F.2d at 1145-47, and would allow parties to shield complaints
8 from any public review as long as they settle before the court adjudicates the matter.
9

“The importance of public access to judicial records and documents cannot be

BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994

10 belittled.” In re Special Grand Jury, 674 F.2d 778, 781 (9th Cir. 1982). If that right
11 is so important it mandates public access to certain “records in the files of the
12 district court having jurisdiction of [a] grand jury” – despite “the rule of grand jury
13 secrecy,” id. – it is inconceivable that a court could accept Defendant’s invitation to
14 find, as a matter of law, that it does not mandate timely public access to civil
15 complaints, one of the most “important” papers in the public government proceeding
16 of modern civil litigation. Standard Chartered Bank, 757 F. Supp. 2d at 259-60.
17

To be sure, there may be times when a party can overcome the right of access

18 by carrying its burden of proving that sealing is essential to protect an overriding
19 interest. Courthouse News, 750 F.3d at 793 n.9. But such a showing is “fact20 intensive,” Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012), and neither that test
21 – which Defendant has not attempted to meet – nor the evidence-dependent time,
22 place and manner test can justify a blanket policy of denying access for “days or
23 weeks” as a matter of law on a motion to dismiss. Plaintiff Courthouse News
24 therefore respectfully requests that the Court deny Defendant’s motion to dismiss.
25 Dated: July 21, 2014

BRYAN CAVE LLP

26

By:

27
28

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

25
PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

Case No. CV11-08083 R (MANx)