Courthouse News Serv. v. Planet

Decision Date17 January 2020
Docket Number16-56714,Nos. 16-55977,s. 16-55977
Citation947 F.3d 581
Parties COURTHOUSE NEWS SERVICE, Plaintiff-Appellee/ Cross-Appellant, v. Michael D. PLANET, in his official capacity as Court Executive Officer/Clerk of the Ventura County Superior Court, Defendant-Appellant/ Cross-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

WARDLAW, Circuit Judge:

"The peculiar value of news is in the spreading of it while it is fresh." Int’l News Serv. v. Associated Press , 248 U.S. 215, 235, 39 S.Ct. 68, 63 L.Ed. 211 (1918), abrogated on other grounds by Erie R.R. Co. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This case pits the urgency of reporting on, and the public interest in obtaining, contemporaneous news about filings in our courts against administrative interests in the fair and orderly processing of those filings. During Courthouse News Service’s decade-long battle to obtain immediate access to newly filed complaints from Ventura County Superior Court, the drive for "fresh" news has only become more intense. In this digital age, newsfeeds and media platforms update the news by the minute or even by the second, and even traditional media deliver an endless stream of "breaking" news. Yet courts undeniably have an important administrative function that requires orderly processing of new filings, and this results in incidental delays to access by the press and public. We are asked to resolve these competing interests.

Applying Press-Enterprise Co. v. Superior Court (Press-Enterprise II ), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986), we conclude that the press has a qualified right of timely access to newly filed civil nonconfidential complaints that attaches when the complaint is filed. However, this right does not entitle the press to immediate access to those complaints. Some reasonable restrictions resembling time, place, and manner regulations that result in incidental delays in access are constitutionally permitted where they are content-neutral, narrowly tailored and necessary to preserve the court’s important interest in the fair and orderly administration of justice.

I.
A.

Courthouse News Service (CNS) "is a national news organization that publishes daily reports for its subscribers about civil litigation, including the filing of new lawsuits." Courthouse News Serv. v. Planet (Planet I ), 750 F.3d 776, 779 (9th Cir. 2014). CNS has more than 2,700 subscribers nationwide, including lawyers, law firms, news organizations, other media outlets, and entertainment and watchdog groups. In addition to sending proprietary litigation reports to law firms, CNS counts twenty-nine media entities among its subscribers, including the Los Angeles Times and Boston Globe . Id. at 780. CNS describes itself as a "pool reporter" for national media, which disseminate CNS’s litigation news to the broader public.

To collect information on newly filed complaints, CNS dispatches its reporters to some 2,600 courthouses across the country, including the Ventura County Superior Court (Ventura County). Over 250 CNS reporters review newly filed complaints and decide which are newsworthy. In California state courts, CNS reports only on unlimited civil complaints, which either seek injunctive relief or have an amount in controversy greater than $25,000.1 See id. at 779 n.1 ; Cal. Civ. Proc. Code §§ 85(a), 88. Approximately sixty-five entities subscribe to CNS’s "Central Coast Reports," the CNS publication that reports on Ventura County lawsuits.

Defendant Michael Planet serves as the Ventura County Court Executive Officer and Clerk. Planet is responsible for the administration of court records, which includes responding to media and other public requests for access to court records. His deputy, Cheryl Kanatzar, is responsible for processing civil court complaints and supervising the Civil Department court processing assistants.

Ventura County neither requires nor allows electronic filing; thus, all pleadings and other documents at the court are filed in paper format and maintained in hard copy in a physical case file in the clerk’s office. Between November 2010 and June 2014, the court maintained a "media bin" in which it placed newly filed complaints after processing them. During that time, Ventura County processed newly filed complaints at the filing counters or desks in the Civil Department using the Court Case Management System (CCMS), which allows the court to maintain its docket of court filings. Ventura County required a seven-step procedure to process a new civil complaint using CCMS. As the district court described:

First, a [court processing assistant] reviews the documents to determine that the complaint is being filed in the correct court and the documents necessary to initiate the case are presented with the correct filing fee or fee waiver. Second, the [court processing assistant] enters all the required case information to "create" a new case in CCMS. Third, all accompanying instruments, for example checks, are entered and the receipt is generated. Fourth, any summons required are issued. Fifth, the documents are stamped as "Filed." Sixth, the labels generated from CCMS are placed on the physical case file, along with the filing date, courtroom assignment, and case destruction stamp. Finally, the documents are placed in a physical case file.

After court processing assistants completed these steps, supervisors performed an additional layer of quality control review, a process which took several additional days to complete. Only after both processes were completed would the clerk designate newly filed civil complaints as "located to the media bin" for public access. However, sometimes the complaints never even made it to the bin, and the court kept no record of the complaints actually delivered to the media bin.

Ventura County also excepted certain complaints from the media bin. After processing, the court routed directly to judges complaints requiring "immediate judicial review," such as California Environmental Quality Act (CEQA) cases or complaints filed simultaneously with ex parte applications for temporary restraining orders. Staff then delivered copies of only the face pages of these complaints to the media bin. To view the entirety of the complaint, CNS had to request a copy directly from the chambers of the assigned judge.

This "no-access-before-process" policy often resulted in significant delays between the filing of a complaint and its availability to CNS; in many documented periods, over half of the filed complaints took two or more court days to become publicly available. Although Planet acknowledges the delay resulting from the no-access-before-process policy, he justified the policy by asserting concerns about privacy and confidentiality, accounting protocols and check payments attached to complaints, quality control, efficiency, and the integrity of court records.

After this suit was filed, however, Planet dropped the no-access-before-process policy. In June 2014, Ventura County instituted its "scanning policy," which requires court staff to scan new civil complaints before reviewing or processing them. After scanning, the complaints are available on public computer terminals in the Ventura County clerk’s office. When Planet originally adopted the scanning policy, the public, including CNS reporters, could view the scanned filings from 8:00 AM until 3:00 PM, even though the courthouse remained open and court staff accepted new filings until 4:30 PM. Complaints filed after 3:00 PM were scanned and made publicly available the next day.

The parties dispute what percentage of new complaints Ventura County made available on the same day as filing under the scanning policy, a dispute that arises from the 3:00 PM public closing time of the clerk’s office. Planet maintains that Ventura County provided same-day access to approximately 97% of filings. CNS counters that Ventura County scanned between "one-third and more than one-half" of complaints after 3:00 PM. Ventura County does not automatically scan and make available any exhibits submitted with the complaints; nor did CNS reporters ask for the exhibits from the court until this litigation.

B.

CNS filed its original lawsuit seeking same-day access to newly filed civil complaints on September 29, 2011. The district court dismissed the suit under the Pullman and O’Shea abstention doctrines. See R.R. Comm’n of Tex. v. Pullman Co. , 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) ; O’Shea v. Littleton , 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). We reversed the district court’s decision to abstain.

Citing Press-Enterprise II , we rejected Planet’s argument that this is not a free expression case, holding that CNS was asserting its First Amendment right of timely access to judicial and other public proceedings and documents. Planet I , 750 F.3d at 784–85. We further held that " Pullman abstention ‘is generally inappropriate when First Amendment rights are at stake.’ " Id. at 784 (quoting Wolfson v. Brammer , 616 F.3d 1045, 1066 (9th Cir. 2010) ). We noted that the first requirement for Pullman abstention—that "the case touches on a sensitive area of social policy upon which the federal courts ought not to enter""is ‘almost never’ satisfied in First Amendment cases ‘because the guarantee of free expression is always an area of particular federal concern.’ " Id. at 783–84 (first quoting Porter v. Jones , 319 F.3d 483, 492 (9th Cir. 2003) ; then quoting Ripplinger v. Collins , 868 F.2d 1043, 1048 (9th Cir. 1989) ). "Abstaining in this case portends particularly egregious damage to First Amendment rights because it stifles the ‘free discussion of governmental affairs’ that the First Amendment exists to protect." Id. at 787 (quoting Globe Newspaper Co. v. Superior Court , 457 U.S. 596, 604, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) ). Moreover, "[t]he purpose of CNS’s effort to timely access filed unlimited...

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