Courthouse News Service v. Michael Planet

Filing 73

NOTICE OF FILING OF UPDATED PROPOSED ORDER filed by Defendant Michael Planet. (Naeve, Robert)

1
2
3
4
5
6
7
8

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

9
UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

WESTERN DIVISION

12
13
14

COURTHOUSE NEWS SERVICE,

15
16
17
18
19
20

Case No. 2:11-cv-08083-R-MAN

Plaintiff,

NOTICE OF FILING OF
UPDATED PROPOSED ORDER

v.

Date:
Time:
Judge:

MICHAEL PLANET, in his official
capacity as Court Executive
Officer/Clerk of the Ventura County
Superior Court,

August 18, 2014
10:00 a.m.
Hon. Manuel L. Real

Defendant.

21
22
23
24

Defendant Michael Planet in his official capacity as the Court Executive

25

Officer of the Superior Court of California, County of Ventura (“VSC”) hereby

26

submits, and lodges with Chambers a Word version of, the Updated Proposed Order

27

attached to this Notice as Exhibit “A.” The Updated Proposed Order reflects the

28
1

Notice of Filing of Updated Proposed Order
Case No. Case No. 2:11-cv-08083-R-MAN

1

now-continued hearing date on VSC’s motion to dismiss, and briefly addresses

2

issues in the Opposition and Reply memoranda filed with respect to that motion.

3
4

Dated:

August 6, 2014.

JONES DAY

5
6

By: /s/
Robert A. Naeve

7

Attorneys for Defendant
MICHAEL PLANET

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2

Notice of Filing of Updated Proposed Order
Case No. Case No. 2:11-cv-08083-R-MAN

1
2
3
4
5
6
7
8
9
10
11
12
13
14

EXHIBIT “A”

15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

Notice of Filing of Updated Proposed Order
Case No. Case No. 2:11-cv-08083-R-MAN

1
2
3
4
5
6
7
8
9

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

10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

12

WESTERN DIVISION

13
14
15

COURTHOUSE NEWS SERVICE,
Plaintiff,

16
17
18
19
20
21

Case No. 2:11-cv-08083-R-MAN
[UPDATED PROPOSED]
ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS AMENDED
COMPLAINT

v.
MICHAEL PLANET, in his official
capacity as Court Executive
Officer/Clerk of the Ventura County
Superior Court,

Date:
Time:
Judge:

Defendant.

August 18, 2014
10:00 a.m.
Hon. Manuel L. Real

22
23
24
25
26
27
28
-4-

Notice of Filing of Updated Proposed Order
Case No. Case No. 2:11-cv-08083-R-MAN

1

This is a civil action by Plaintiff Courthouse News Service (“CNS”) against

2

Defendant Michael Planet in his official capacity as the Court Executive Officer of

3

the Superior Court of California, County of Ventura (“VSC”). The Amended

4

Complaint contains a single claim for relief for injunctive and declaratory relief

5

arising from an alleged violation of the First Amendment to the United States

6

Constitution. The Amended Complaint asks this Court to find that CNS has a

7

constitutional right to review unlimited civil complaints on the same day they are

8

received by VSC’s clerks, even before these complaints are processed, filed, and

9

entered into the court’s official records – a so-called right of “same-day access.”

10

The question presented by this case is not whether a qualified First

11

Amendment right of access could ever apply to civil complaints. Rather, the

12

question presented is whether the First Amendment enshrines a right of access to

13

civil complaints on the same day they are received by a court. In other words, “the

14

issue is not whether the public will gain access, but when” the qualified First

15

Amendment right of access might apply. See U.S. v. Inzunza, 303 F. Supp. 2d

16

1041, 1048 (S.D. Cal. 2004). This is “an important question of first impression”

17

about which the Ninth Circuit took “no position” when it remanded this case to this

18

Court for further proceedings. Courthouse News Service v. Planet, 750 F.3d 776,

19

793 (9th Cir. 2014).

20

Having considered all the papers submitted, oral argument, and the Court’s

21

file in this matter, and good cause having been shown, the Court hereby GRANTS

22

VSC’s Motion to Dismiss for the following reasons.

23

(1)

VSC’s Motion to Dismiss is not barred by the Ninth Circuit’s decision

24

in Courthouse News Service v. Planet, 750 F.3d 776. The Ninth Circuit held that

25

federal abstention doctrines do not preclude this Court from hearing this matter, and

26

remanded CNS’s claims to this court so that they could be decided “on the merits”

27

in the first instance. Id., 750 F.3d at 779, 793. VSC’s motion to dismiss addresses

28

“the merits” and is properly before this Court pursuant to a stipulated briefing
-5-

Notice of Filing of Updated Proposed Order
Case No. Case No. 2:11-cv-08083-R-MAN

1

schedule. Federated Dep’t Stores v. Moitie, 452 U.S. 394, 399 n.3 (1981); ECF 63

2

(stipulation), 64 (order granting stipulation). The law of the case and rule of

3

mandate doctrines do not apply in this circumstance. E.g., Hall v. City of L.A., 697

4

F.3d 1059, 1067 (9th Cir. 2012).

5

(2)

Neither the Supreme Court nor the Ninth Circuit has ever ruled on the

6

scope of the First Amendment right of access in the context of records in civil

7

cases. Nixon v. Warner Comm’cns, Inc., 435 U.S. 589, 608-10 (1978); Perry v.

8

Brown, 667 F.3d 1078, 1088 (9th Cir. 2012).

9

(3)

Most circuit courts, including the Ninth Circuit, rely upon the

10

“experience and logic” test enunciated in Press-Enterprise Co. v. Superior Court,

11

464 U.S. 501 (1984) to determine the extent of the right of access to judicial

12

documents in criminal proceedings. See, e.g., U.S. v. Higuera-Guerrero, 518 F.3d

13

1022, 1026 (9th Cir. 2008); Oregonian Publ’g Co. v. U.S. Dist. Court, 920 F.2d

14

1462, 1465 (9th Cir. 1990). Federal courts recognize that “the First Amendment

15

guarantee of access has been extended only to particular judicial records and

16

documents.” Stone v. Univ. of Md. Medical System Corp., 855 F.2d 178, 180 (4th

17

Cir. 1988).

18

(4)

This Court finds that the First Amendment right of access does not

19

apply to documents the moment they are “received” by a state court, before these

20

documents are processed, filed, secured and entered into court records for public

21

review. Filing “is very much a prerequisite” to First Amendment access rights.

22

SEC v. Am. Int’l Group, 712 F.3d 1, 4 (D.C. Cir. 2013). New civil unlimited

23

complaints are not “filed” until after they have been processed, reviewed and

24

entered into the court’s official records. E.g., Cal. Rs. Ct. 2.250(b)(7), 2.253(b)(7),

25

2.254(c), 2.259(c). CNS’s Amended Complaint must therefore be dismissed

26

because it seeks to impose a First Amendment right of access upon new civil

27

unlimited complaints before they are “filed.” Pansy v. Borough of Stroudsburg, 23

28
-6-

Notice of Filing of Updated Proposed Order
Case No. Case No. 2:11-cv-08083-R-MAN

1

F.3d 772, 782 (3d Cir. 1994) (whether a document is a judicial record turns “on the

2

technical question of whether a document is physically on file with the court”).

3

(5)

Even if new civil unlimited complaints were “filed” upon “receipt,”

4

this Court finds that the qualified First Amendment right of access extends only to

5

particular “judicial records,” Stone, 855 F.2d at 180; that “the mere filing of a paper

6

or document with the court is insufficient to render that paper a judicial document

7

subject to the right of public access,” U.S. v. Amodeo, 44 F.3d 141, 145 (2d Cir.

8

1995); and that complaints become “judicial records” only when they “come before

9

the court in the course of an adjudicatory proceeding” and are “relevant to that

10

adjudication,” In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002). Hence,

11

this Court finds as a matter of law that unlimited civil complaints do not qualify as

12

“judicial documents” on the day VSC receives them for filing.

13

(6)

This Court further finds that there is no “experience” of same-day

14

access under the first prong of the Press-Enterprise test. For more than a century,

15

federal and state courts have recognized that there is no same-day right of access to

16

complaints filed in civil cases. E.g., In re Reporters Comm. for Freedom of Press,

17

773 F.2d 1325 (D.C. Cir. 1985); Schmedding v. May, 85 Mich. 1 (1891); Cowley v.

18

Pulsifer, 137 Mass. 392 (1884).

19

(7)

This Court takes judicial notice of, and has reviewed, the statutes,

20

court rules and memoranda attached to the Requests for Judicial Notice submitted

21

by CNS (ECF 67) and VSC (ECF 72). Fed. R. Evid. 201. None of these authorities

22

recognize a right of access to court documents before they have been processed,

23

reviewed and entered into the court’s official records. To the contrary, these

24

authorities recognize only a right of “reasonable access” to state court files. E.g.,

25

Ariz. S. Ct. R. 123(2) & (4); Ohio R. Super. 45(b); R.I. Gen. Laws § 38-2-3(a). In

26

addition, most of these laws mandate varying time periods – including a

27

“reasonable period of time” in Arizona, one to three days in Alaska, three days in

28

Colorado, five days in New York, ten days in Hawaii, fourteen days in Texas, up to
-7-

Notice of Filing of Updated Proposed Order
Case No. Case No. 2:11-cv-08083-R-MAN

1

sixty working days in Maine, and no specific time at all in Wisconsin – in which to

2

respond to access requests. See Alaska Guidelines for Inspecting and Obtaining

3

Copies of Public Records V(B)(1), V(C) & V(D); Colo. Rev. Stat. § 24-72-303;

4

Hawaii Court Records Rule 10.4; Maine Administrative Order JB-05-20; New

5

York Administrative Rule of the Unified Court System 124.6; Texas Rule of

6

Judicial Administration 12.1; Wisconsin Department of Justice, Compliance

7

Outline: Wis. Stat. §§ 19.31-19.39 § VII(B)(1) (Sept. 2012).

8
9
10

(8)

The First Amendment access right CNS seeks to establish in this case

is inconsistent with the access laws in virtually every state in the union.
(9)

This Court also finds that there is no “logic” to a right of same-day access

11

under the second prong of the Press-Enterprise test. Logic supports a right of

12

constitutional access where it “is significantly important to the public’s ability to

13

oversee the [judicial] process and to ensure the judicial system functions fairly and

14

effectively.” U.S. v. Wecht, 537 F.3d 222, 257 (3d Cir. 2008). Thus, the Ninth Circuit

15

has recognized a constitutional right of access to documents filed in regard to criminal

16

pretrial proceedings because such documents are “important to a full understanding of

17

the way in which ‘the judicial process and the government as a whole’ are

18

functioning.” Associated Press v. U.S. Dist. Court, 705 F.2d 1143, 1145 (9th Cir.

19

1983). The First Amendment’s salutary goal of shedding light upon the administration

20

of justice, however, has “no application whatever to the contents of a preliminary

21

written statement of a claim or charge … whose form and contents depend wholly on

22

the will of a private individual.” Cowley, 137 Mass. at 394; see also NBC Subsidiary

23

(KNBC-TV) v. Superior Court, 20 Cal.4th 1178, 1208 n.25 (1999). The “logic” that

24

compels public access to certain proceedings and documents, therefore, is inapplicable

25

to civil complaints. See IDT Corp. v. eBay, Inc., 709 F.3d 1220, 1224 (8th Cir. 2013);

26

Mercury Interactive Corp. v. Klein, 158 Cal.App.4th 60, 96-97 (2007).

27
28

(10) The alternative First Amendment access test CNS advocates in its
Opposition (ECF 66 at 21) does not apply. The alternative test extends the First
-8-

Notice of Filing of Updated Proposed Order
Case No. Case No. 2:11-cv-08083-R-MAN

1

Amendment right of access “to materials submitted in conjunction with judicial

2

proceedings that themselves would trigger the right to access.” Co. Doe v. Pub.

3

Citizen, 749 F.3d 246, 267 (4th Cir. 2014); see also Hartford Courant Co. v.

4

Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004) (granting First Amendment access rights

5

upon documents that are “derived from or a necessary corollary of the capacity to

6

attend the relevant proceedings”). Put simply, there is no such proceeding at the

7

moment new complaints are received by a state court. See Times Mirror Co. v.

8

U.S., 873 F.2d 1210, 1217-18 (9th Cir. 1989) (although a judicial document “may,

9

in due course, be disclosed to a defendant so she can challenge the constitutionality

10

of the search at a suppression hearing to which the public has a First Amendment

11

right of access, it does not follow that the public should necessarily have access to

12

the information before that time”).

13

(11) Assuming arguendo that the qualified First Amendment right of access

14

attached to new civil unlimited complaints on the moment they are received by

15

VSC for filing, the Amended Complaint must still be dismissed because it fails to

16

allege a violation of that qualified right for two related reasons. First, the alleged

17

delay in access to new unlimited civil complaints “is not the kind of classic prior

18

restraint that requires exacting First Amendment scrutiny.” Seattle Times Co. v.

19

Rhinehart, 467 U.S. 20, 33 (1984). “[L]imitations on the right of access that

20

resemble ‘time, place, and manner’ restrictions on protected speech [are] not

21

subjected to such strict scrutiny.” Globe Newspaper Co. v. Superior Court, 457

22

U.S. 596, 607 n.17 (1982). Hence, the “compelling or overriding interest” standard

23

asserted in the Amended Complaint does not apply. See Planet, 750 F.3d at 793

24

n.9.

25

(12) Second, and again assuming arguendo that the qualified First

26

Amendment right of access attached to new civil unlimited complaints on the

27

moment they are received by VSC for filing, the Amended Complaint does not

28

allege a violation of that qualified First Amendment right. VSC’s alleged policy of
-9-

Notice of Filing of Updated Proposed Order
Case No. Case No. 2:11-cv-08083-R-MAN

1

providing public access to unlimited civil complaints after they have been received,

2

processed and placed in official court files, reasonably balances the interests of

3

CNS with those of litigants and court staff, safeguards unprocessed documents from

4

theft and damage, and protects the privacy interests of third parties. E.g., Bruce v.

5

Gregory, 65 Cal.2d 666, 676 (1967).

6

IT IS SO ORDERED this ___ day of August, 2014.

7
8

_________________________________________
United States District Court Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 10 -

Notice of Filing of Updated Proposed Order
Case No. Case No. 2:11-cv-08083-R-MAN