Courthouse News Service v. Michael Planet
Filing
81
OBJECTION in opposition re: MOTION to Dismiss Amended Complaint #61 to Defendant's [Proposed] Memorandum and Order Granting Defendant's Motion to Dismiss #80 filed by Plaintiff Courthouse News Service. (Attachments: #1 Exhibit 1)(Matteo-Boehm, Rachel)
1 Rachel E. Matteo-Boehm (SBN 195492)
2 rachel.matteo-boehm@bryancave.com
Roger Myers (SBN 146164)
3 roger.myers@bryancave.com
4 Leila C. Knox (SBN 245999)
leila.knox@bryancave.com
5 BRYAN CAVE LLP
6 560 Mission Street, 25th Floor
San Francisco, CA 94105-2994
7 Telephone: (415) 675-3400
8 Facsimile: (415) 675-3434
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9 Jonathan G. Fetterly (SBN 228612)
10 j on.fetterly@bryancave.com
BRYANCAVELLP
11 120 Broadway, Suite 300
12 Santa Monica, CA 90401-2386
Telephone: (310) 576-2100
13 Facsimile: (310) 576-2200
14
Attorneys for Plaintiff
15 COURTHOUSE NEWS SERVICE
16
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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19 Courthouse News Service,
Case No. CV11-08083 R (MANx)
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PLAINTIFF COURTHOUSE
NEWS SERVICE'S OBJECTIONS
TO DEFENDANT MICHAEL
PLANET'S [PROPOSED]
MEMORANDUM AND ORDER
GRANTING DEFENDANT'S
MOTION TO DISMISS
Plaintiff,
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vs.
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Michael Planet, in his official capacity as
Court Executive Officer/Clerk of the
Ventura County Superior Court,
Defendant.
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213933.1
PLAINTIFF'S OBJECTIONS TO PROPOSED ORDER
SUBMITTED BY DEFENDANT
Case No. CVII-08083
R (MANx)
1
Plaintiff Courthouse News Service ("Courthouse News") respectfully objects
2 as follows to the [Proposed] Memorandum and Order Granting Defendant's Motion
3 to Dismiss Amended Complaint lodged on August 26, 2014 by Defendant Michael
4 Planet in his official capacity as Court Executive Officer/Clerk of the Ventura
5 County Superior Court ("Defendant's Proposed Order") (ECF #80-1).
6
In its August 18,2014 ruling from the bench, the Court directed counsel to
7 submit an order "consistent with" that ruling. Similarly, in its subsequent minute
8 order, the Court stated that it had granted Defendant's motion to dismiss "for the
9 reasons as stated on the record" and that counsel should lodge a proposed order
10 "consistent with the Court's ruling."
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As evidenced by the transcript of the August 18, 2014 proceedings, a copy of
12 which is attached hereto as Exhibit 1 (hereinafter "Transcript"), Defendant's
13 Proposed Order goes well beyond the Court's ruling and repeats many arguments
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11 access will be granted, but the issue is when access must be given." (see Transcript,
12 page 7, lines 14-16).
13
Page 5, lines 11-28: Strike paragraphs 4, 5 and 6 of the "Analysis" section of
14 Defendant's Proposed order as inconsistent with the Court's August 18 ruling.
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15 Replace paragraph 5 with the following sentence: "Although CNS argues the Ninth
16 Circuit already decided that CNS has stated a viable claim for violation of this First
17 Amendment right, this Court disagrees. The Ninth Circuit only determined that this
18 Court should not abstain from hearing the case. The Ninth Circuit explicitly stated
19 that it was making no decision on the merits, exactly what a 12(b)( 6) motion is, a
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motion on the merits." (see Transcript, page 7, lines 17-23).
Page 6, lines 1-15: Strike paragraph 7 of the "Analysis" section of
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Defendant's Proposed order as inconsistent with the Court's August 18 ruling.
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Replace with the following: "The Ninth Circuit relies on the experience and logic
24 test enunciated in Press Enterprise Company v. Superior Court, 464 U.S. 501
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(1984) to determine the extent of the right of access to judicial documents. Under
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the experience and logic test, the court examines (1) whether the proceeding has
27 historically been open to the public and (2) whether the right of access plays an
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essential role in the proper functioning of the judicial process and the government as
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PLAINTIFF'S OBJECTIONS TO PROPOSED ORDER
SUBMITTED BY DEFENDANT
Case No. CVII-08083
R (MANx)
1 a whole." (see Transcript, page 8, lines 8-17).
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Page 6, lines 16-28; page 7, lines 1-28: Strike paragraphs 8, 9, 10 and 11 of
3 the "Analysis" section of Defendant' s Proposed order as inconsistent with the
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Court's August 18 ruling. Replace with the following: "CNS alleges that there is a
5 tradition of allowing same-day access to complaints before they are processed and
6 has submitted voluminous amounts of documents that it requests this Court to take
7 judicial notice thereof. There has not been a long tradition of same-day access to
8 complaints. Justice Oliver Wendell Holmes, as part of the Massachusetts Supreme
9 Court, held that civil complaints are not even proceedings in open court and that the
10 reporting privilege does not attach to them. Cowley v. Pulsifer, 137 Mass. 392
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11 (1884). Regardless of whether this is currently good law, it shows there is not a
12 long tradition of same-day access to complaints for the press. Moreover, many of
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13 the state statutes that provide access to complaints that CNS seeks to have this Court
14 take judicial notice of only contemplate making the case file available to the public.
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15 None of these require same-day access before a case file has even been created."
16 (see Transcript, page 8, lines 18-25; page 9 lines 1-13).
17
Page 8, lines 1-28; page 9, lines 1-12: Strike paragraphs 12 and 13 of the
18 "Analysis" section of Defendant's Proposed order as inconsistent with the Court's
19 August 18 ruling. Replace with the following: "This experience comports with
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logic. States have a compelling interest to safeguard unprocessed documents from
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theft and damage and protect the privacy interests of third parties. Bruce v.
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Gregory, 65 Cal. 2d 666 (1967). Without some minimal processing by the clerk it is
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impossible to ensure the integrity of the filed complaints. Moreover, as CNS notes
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in its exhibit to its complaint, that many of the courts that provide same-day access
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to complaints only do so after the clerk has either scanned the complaint or
26 photocopied it. This is logical to make sure that integrity of the documents is not
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compromised. Finally, many courts have a cutoff time, usually two hours to half an
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hour before the end of day, wherein complaints are received. That time will not be
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PLAINTIFF'S OBJECTIONS TO PROPOSED ORDER
SUBMITTED BY DEFENDANT
Case No. CVII-08083
R (MANx)
1 available for same-day review. Although many courthouses allow access to
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complaints before they are fully processed, most either scan or photocopy the
3 complaint and assign a case number before allowing access." (see Transcript, page
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9, lines 14-25; page 10, lines 1-10).
Page 9, lines 15-16: Strike the phrase "and a hard or electronic copy has been
6 made accessible to the public" in paragraph 14 of the Analysis section as
7 inconsistent with the Court's August 18 ruling. Replace with the following: "and
8 making either a hard or electronic copy." (see Transcript, page 10, lines 13-14).
9
Page 9, lines 17-28: Strike paragraph 15 of the "Analysis" section of
10 Defendant's Proposed order as inconsistent with the Court's August 18 ruling.
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11 Replace with the following: "As a matter of law, CNS does not have a First
12 Amendment right to access civil complaints before this minimal processing has been
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13 completed." (see Transcript, page 10, lines 18-20).
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Page 10, lines 1-11: Strike paragraph 16 of the "Analysis" section of
15 Defendant's Proposed order as inconsistent with the Court's August 18 ruling.
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17 Dated: August 27,2014
BRYAN CAVE LLP
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By:
/s/ Rachel E. Matteo-Boehm
Rachel E. Matteo-Boehm
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE
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PLAINTIFF'S OBJECTIONS TO PROPOSED ORDER
SUBMITTED BY DEFENDANT
Case No. CVII-08083
R (MANx)
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