Courthouse News Service v. Michael Planet

Filing 72

REQUEST FOR JUDICIAL NOTICE re MOTION to Dismiss Amended Complaint #61 filed by Defendant Michael Planet. (Attachments: #1 Exhibit Exhibits to RJN)(Naeve, Robert)

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Robert A. Naeve (State Bar No. 106095)
Erica L. Reilley (State Bar No. 211615)
Nathaniel P. Garrett (State Bar No. 248211)
[e-mail]
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, CA 92612.4408
Telephone: [phone]
Facsimile: +1.949.553.7539
Attorneys for Defendant
MICHAEL PLANET

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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COURTHOUSE NEWS SERVICE,

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Plaintiff,
v.
MICHAEL PLANET, in his official
capacity as court executive
officer/clerk of the Ventura County
Superior Court,

Case No. CV-11-08083-R(MANx)
Assigned for all purposes to
Hon. Manuel L. Real
DEFENDANT MICHAEL
PLANET’S REQUEST FOR
JUDICIAL NOTICE IN
SUPPORT OF MOTION TO
DISMISS

Defendant.

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As explained in VSC’s Response To Plaintiff’s Request For Judicial Notice,
VSC does not object to CNS’s request that this Court judicially notice the text of
the state access statutes and rules attached to CNS’s Request to Take Judicial
Notice, ECF No. 67. VSC instead asked that this Court disregard CNS’s erroneous
legal conclusions regarding these authorities.
This Request for Judicial Notice supplements the record with copies of
relevant state access statutes, rules and policy statements CNS failed to mention.
VSC hereby respectfully requests that this Court judicial notice these authorities
pursuant to Federal Rule of Evidence 201. See generally Lamar v. Micou, 114 U.S.
218 (1885) (“Courts of the United States take judicial notice of the laws of any
Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

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state, whether depending on state statutes or judicial decisions”); Daghlian v.
DeVry Univ., Inc., No. CV 06-00994 MMM, 2007 U.S. Dist. LEXIS 97797, at *7
n.9 (C.D. Cal. Dec. 10, 2007) (“Courts regularly take judicial notice of government
agency websites and the information contained on them, treating official policies
and records posted on the websites as public records”).

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VSC asks that the Court reach its own conclusions as to what each of the
cited states provides, but notes that none of them establishes, recognizes or even
mentions a purported right of access to new complaints before they are processed,

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filed and entered in a court’s records and made available for public viewing, and

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that virtually all of them establish a right of “reasonable access” to filed judicial

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records.

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Ex.

State Statute or Rule

1. Alaska Court System,
Office Of The
Administrative Director,
Alaska Guidelines for
Inspecting and Obtaining
Copies of Public Records

1.
The Guidelines makes clear that
Alaska does not recognize a right of sameday access to civil complaints.

2. Cal. Gov’t Code § 68150

1.
The statute makes clear that
California does not recognize a right of
same-day access to civil complaints.

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Summary Of Provisions

2.
Guideline V(B)(1) provides: “[A]
case file must be made available for
inspection to a member of the general public
within one working day after the request is
made.” However, “[i]f a case file is
checked out of the clerk’s office, is being
processed by the clerk's office, or cannot be
located,” the clerk’s office must respond
“no later than five working days after the
request is made,” and must indicate
“whether the records are accessible to the
public, and if so, when and where inspection
may take place or copies may be obtained.”
Guidelines V(B)(1), V(C) & V(D).

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Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

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Ex.

State Statute or Rule

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2.
Instead, Cal. Gov’t Code § 68150(h)
requires only that court records be made
“reasonably accessible.”

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3. Cal. Rule of Court 2.500

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4. Cal. Rule of Court 2.250

1.
California Rule of Court 2.250(B)(7)
confirms that documents are not “officially
filed” until they have been processed and
reviewed, and entered into a court’s records.

5. Colo. Rev. Stat. § 24-72303

1.
The statute makes clear that Colorado
does not recognize a right of same-day
access to civil complaints.

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2.
The Colorado Criminal Justice
Records Act, which permits the custodian of
records “three working days” to make a
record “available for inspection” if it is “is
in active use or in storage[.]”

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6. Delaware Chancery Court
Rule 5.1

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1.
The rule makes clear that Delaware
does not recognize a right of same-day
access to civil complaints.
2.
The rule merely provides that court
records “shall be available for public
access” without placing any timing
requirements upon the custodians of those
records.

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1.
The rule makes clear that California
does not recognize a right of same-day
access to civil complaints.
2.
Instead, California Rule of Court
2.500(a) requires only that court records be
made “reasonably accessible.”

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Summary Of Provisions

7. Florida Rule of Judicial
Administration 2.420

1.
The rule makes clear that Florida
does not recognize a right of same-day
access to civil complaints.
2.
Florida Rule of Judicial
Administration 2.420(m) requires only that
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Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

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Ex.

State Statute or Rule

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responses to requests for court records “be
made in a reasonable manner.”

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8. Ga. Code § 50-18-71

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9. Hawaii Court Records Rule
10.4

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10. Iowa Code § 22.2

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1.
The statute makes clear that Iowa
does not recognize a right of same-day
access to civil complaints.
2.
This provision of the Iowa Code
addresses public access to court records, and
does not set forth any timing requirements,
let alone mandate same day access to civil
complaints.

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1.
The rule makes clear that Hawaii
does not recognize a right of same-day
access to civil complaints.
2.
Hawaii Court Records Rules, Rule
10.4 requires that the Clerk shall make
public records available “within a
reasonable time, subject to the court’s . . .
priority use of the record,” and only requires
notice to the Requester if the record not
been provided within ten business days.

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1.
The statute makes clear that Georgia
does not recognize a right of same-day
access to civil complaints.
2.
The statute instead provides:
“Agencies shall produce for inspection all
records responsive to a request within a
reasonable amount of time not to exceed
three business days of receipt of a request.”

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Summary Of Provisions

11. Iowa Code § 22.4

1.
The statute makes clear that Iowa
does not recognize a right of same-day
access to civil complaints.
2.
This provision of the Iowa Code
addresses the timing of public access to
court records, and does not set forth any
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Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

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Ex.

State Statute or Rule

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Summary Of Provisions
specific requirements.

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12. Kan. Stat. § 45-218(d)

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2.
It expressly disclaims any same day
access rights, and provides instead that
“[e]ach request for access to a public record
shall be acted upon as soon as possible, but
not later than the end of the third business
day following the date that the request is
received.”

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1.
The statute makes clear that Kansas
does not recognize a right of same-day
access to civil complaints.

13. Ky. Stat. § 61.872

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1.
The statute makes clear that Kentucky
does not recognize a right of same-day
access to civil complaints.
2.
Kentucky’s Open Records Act
permits a three day window within which a
custodian may provide a public record if the
document is “in active use.”

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14. La. Rev. Stat. § 44:33

1.
The statute makes clear that
Louisiana does not recognize a right of
same-day access to civil complaints.
2.
This provision of Louisiana’s Public
Records Act expressly states that if the
public record requested is not immediately
available then the custodian has three
business days within which to provide it.

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15. Maine Administrative Order 1.
The order makes clear that Maine
JB-05-20
does not recognize a right of same-day
access to civil complaints.
2.
In fact, it sets forth a specific
timetable for responses to requests for
“records related to cases”:
1-5 names within 5 working days
6-10 names within 30 working days
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Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

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Ex.

State Statute or Rule

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Summary Of Provisions
11-15 names within 45 working days
16-20 names within 60 working days
21+ names to be determined by the Clerk
and/or Senior Service Center Associate

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16. Maryland Rule of Procedure 1.
The rule makes clear that Maryland
16-1002(b)(i)
does not recognize a right of same-day
access to civil complaints.

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2.
It provides that the records open to
inspection include only those that have been
“docketed or recorded and indexed.”

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17. Massachusetts District
Court Department of the
Trial Court, A Guide to
Public Access, Sealing &
Expungement, § I(1)(6),
available at
http://www.mass.gov/courts
/docs/courts-andjudges/courts/districtcourt/pubaccesscourtrecords
.pdf

1.
The Guide makes clear that
Massachusetts does not recognize a right of
same-day access to civil complaints.

18. Michigan Trial Court Case
File Management Standards
§ 1.1.6

1.
The standards make clear that
Michigan does not recognize a right of
same-day access to civil complaints.

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2.
It contains a pronouncement that
“[t]he public’s presumptive right of access
is subject to reasonable limitations as to
time and place that clerk-magistrates may
impose to avoid disrupting the orderly
functioning of their offices or courtroom
proceedings, to protect the physical security
of court records, and to guarantee equal
access to all inquirers.”

2.
In fact, they set forth detailed
procedures for providing public access to
court records, and no mention is made of
same-day access or any other time
restriction.

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1.
The statute makes clear that
Mississippi does not recognize a right of
same-day access to civil complaints.

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2.

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19. Miss. Code § 25-61-5

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Mississippi’s Public Access Law
Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

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Ex.

State Statute or Rule

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provides that access to documents must only
be provided “in accordance with reasonable
written procedures adopted by the public
body concerning the cost, time, place and
method of access[.]”

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Summary Of Provisions

20. Missouri Supreme Court
Operating Rule 2.08

1.
The rule makes clear that Missouri
does not recognize a right of same-day
access to civil complaints.

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2.
It provides that the custodian of
records must respond to requests for records
only “as promptly as practical.”

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21. N.C. Gen. St. § 132-6(a)

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2.
North Carolina’s Public Records Act
only requires custodians of public records to
permit documents to be inspected “at
reasonable times” and to provide the
documents “as promptly as possible.”

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22. N.J. Stat. § 47:1A-5

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1.
The statute makes clear that New
Jersey does not recognize a right of sameday access to civil complaints.
2.
It provides that “[c]ourt records and
administrative records are available only in
the form in which they are maintained or
indexed by the Judiciary,” which implies the
records may be processed before any public
right of access adheres.

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1.
The statute makes clear that North
Carolina does not recognize a right of sameday access to civil complaints.

23. Neb. Rev. Stat. § 84-712

1.
The statute makes clear that Nebraska
does not recognize a right of same-day
access to civil complaints.
2.
Nebraska’s Public Records Act,
which provides the custodian of records
four business days to respond to records
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Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

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Ex.

State Statute or Rule

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Summary Of Provisions
requests.

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24. Nebraska Rule of Court 1809

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2.
Instead, it permits the Court to
respond to a “request for access to
information” not on the same day as the
request but instead merely “within a
reasonable time.”

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25. New Hampshire Task Force
on Public Access to Court
Records, available at
http://www.courts.state.nh.u
s/press/2006/publicaccess.p
df

1.
The task force guide makes clear that
New Hampshire does not recognize a right
of same-day access to civil complaints.

26. New York Administrative
Rule of the Unified Court
System 124.6

1.
The rule makes clear that New York
does not recognize a right of same-day
access to civil complaints.

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27. North Dakota Supreme
Court Administrative Rule
41

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1.
The rule makes clear that North
Dakota does not recognize a right of sameday access to civil complaints.
2.
Rule 41(3)(b)(2) provides that
“[u]pon receiving a request for access to
information, the clerk of court must respond
as promptly as practical.”

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2.
The report recommends the
institution of a ten day opportunity for
“affected persons” to request a limit on
public access rights, including with respect
to “pleading[s].”

2.
It provides that a records access
officer shall respond “within five business
days of the receipt of a request for access to
a record.”

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1.
The rule makes clear that Nebraska
does not recognize a right of same-day
access to civil complaints.

28. Okla. Code, Title 51 §
24A.5(5)

1.
The statute makes clear that
Oklahoma does not recognize a right of
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Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

1

Ex.

State Statute or Rule

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Summary Of Provisions
same-day access to civil complaints.

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2.
It provides instead that: “A public
body must provide prompt, reasonable
access to its records but may establish
reasonable procedures which protect the
integrity and organization of its records and
to prevent excessive disruptions of its
essential functions.”

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29. Or. Rev. Stat. § 192.430

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2.
It requires only “proper and
reasonable opportunities for inspection and
examination” of public records.

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30. Or. Rev. Stat. § 192.440

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31. 65 Pa. Code § 67.901

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1.
The statute makes clear that
Pennsylvania does not recognize a right of
same-day access to civil complaints.
2.
Pennsylvania’s “Right-to-Know” law
provides that the “time for response [for
public records] shall not exceed five
business days.”

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1.
The statute makes clear that Oregon
does not recognize a right of same-day
access to civil complaints.
2.
It requires only that a response to a
request for public records shall be made “as
soon as practicable and without
unreasonable delay.”

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1.
The statute makes clear that Oregon
does not recognize a right of same-day
access to civil complaints.

32. R.I. Gen. Laws § 38-2-3

1.
The statute makes clear that Rhode
Island does not recognize a right of sameday access to civil complaints.
2.
Rhode Island only requires access to
be provided “at such reasonable time as
may be determined by the custodian
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Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

1

Ex.

State Statute or Rule

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thereof.” Moreover, the statute expressly
disclaims any same day public access right
because it provides the custodian ten
business days within which inspection of
records must be permitted.

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33. S.D. Codified Laws §1515A-14

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34. South Carolina’s Clerk of
Court Manual Rule 1.13

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35. Tenn. Code § 10-7503(A)(1)(B)

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1.
The statute makes clear that
Tennessee does not recognize a right of
same-day access to civil complaints.
2.
Tennessee’s Open Records Act
provides: “In the event it is not practicable
for the record to be promptly available for
inspection, the custodian shall, within seven
(7) business days” respond to the request or
provide the document.

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1.
The rule makes clear that South
Carolina does not recognize a right of sameday access to civil complaints.
2.
It does not provide any same day
right of access, but Rule 1.13 merely
instructs that “information filed in the Clerk
of Court offices . . . are public records
which may be viewed on request.”

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1.
The statute makes clear that South
Dakota does not recognize a right of sameday access to civil complaints.
2.
It provides: “Upon receiving a
request for access to information the court
will respond within a reasonable time
regarding the availability of the information
and provide the information within a
reasonable time.”

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Summary Of Provisions

36. Texas Rule of Judicial
Administration 12.1

1.
The rule makes clear that Texas does
not recognize a right of same-day access to
civil complaints.
2.
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Texas Rule of Judicial Administration
Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

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Ex.

State Statute or Rule

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Summary Of Provisions
12.1 provides that responses to a request for
court records must be made “[a]s soon as
practicable -- and not more than 14 days”
after the request.”

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37. Utah Code § 63G-2-204(1)

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2.
Utah’s Government Records Access
and Management Act requires a response to
a request for court records “no later than 10
business days after receiving a written
request, or five business days after receiving
a written request if the requester
demonstrates that expedited response to the
record request benefits the public rather
than the person.”

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38. Vt. Stat. tit. 1, § 316

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1.
The statute makes clear that Vermont
does not recognize a right of same-day
access to civil complaints.
2.
It states that “[a] public agency may
make reasonable rules to prevent
disruption of operations, to preserve the
security of public records or documents,
and to protect them from damage.”

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1.
The statute makes clear that Utah
does not recognize a right of same-day
access to civil complaints.

39. Vt. Stat. tit. 1, § 318

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1.
The statute makes clear that Vermont
does not recognize a right of same-day
access to civil complaints.
2.
This provision requires the custodian
“promptly produce” the requested record,
but also permits the custodian to delay
providing a record if it “is in active use or
in storage and therefore not available for
use at the time the person asks to examine
it.”

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40. W. Va. Code § 29B-1-3

1.
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The statute makes clear that West
Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

1

Ex.

State Statute or Rule

2

Virginia does not recognize a right of sameday access to civil complaints.

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2.
W. Va. Code § 29B-1-3(3) permits
the custodian of records to “make
reasonable rules and regulations necessary
for the protection of the records and to
prevent interference with the regular
discharge of his or her duties.” Further, W.
Va. Code § 29B-1-3(4) gives records
custodians five business days to furnish
copies of public records.

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41. Wash. Rev. Code, General
Rule 31(a)

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42. Wis. Stat. § 19.35(4)(a)

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1.
The statute makes clear that
Wisconsin does not recognize a right of
same-day access to civil complaints.
2.
It only requires responses to requests
for records to be made “as soon as
practicable and without delay[.]”

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1.
The statute makes clear that
Washington does not recognize a right of
same-day access to civil complaints.
2.
It states that “[a]ccess to court records
is not absolute and shall . . . not unduly
burden the business of the courts.”

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Summary Of Provisions

43. Wisconsin Department of
Justice, Compliance
Outline: Wis. Stat. §§
19.31-19.39, Sept. 2012,
available at
http://www.doj.state.wi.us/si
tes/default/files/dls/publicrecords-compliance-outline2012.pdf

1.
The Guide makes clear that
Wisconsin does not recognize a right of
same-day access to civil complaints.
2.
In this compliance outline,
Wisconsin’s Attorney General opined that
the state’s “public records law does not
require response within any specific time,
such as ‘two weeks’ or ‘48 hours. . . . .
What constitutes a reasonable time for a
response to any specific request depends on
the nature of the request, the staff and other
resources available to the authority to
process the request, the extent of the
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Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss

1

Ex.

State Statute or Rule

2

request, and related considerations. Whether
an authority is acting with reasonable
diligence in responding to a particular
request will depend on the totality of
circumstances surrounding that request.
[Citation.].”

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Summary Of Provisions

44. Wyoming Rule Governing
Access to Court Records 4

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1.
The rule makes clear that Wyoming
does not recognize a right of same-day
access to civil complaints.
2.
Rule 4 of the Wyoming Rules
Governing Access to Court Records
provides that “[u]pon receiving a request for
access to court records, the custodian shall
respond within a reasonable time regarding
the availability of the records, and shall
provide or deny access thereto within a
reasonable time. Court records shall be
provided at a time and in a manner that
does not unreasonably interfere with other
business of the courts.”

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Respectfully submitted,
Dated:

August 4, 2014.

JONES DAY

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By: /s/
Robert A. Naeve
Attorneys for Defendant
MICHAEL PLANET

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Def.’s Request For Judicial Notice In Support
Of Motion To Dismiss