You are on page 1of 32

Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 1 of 30

Nos. 16-55977, 16-56714

IN THE UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT

COURTHOUSE NEWS SERVICE,


Plaintiff-Appellee,
v.
MICHAEL D. PLANET, in his official capacity as
Court Executive Officer/Clerk of the Ventura County Superior Court,
Defendant-Appellant.

On Appeal from the United States District Court


for the Central District of California
Honorable S. James Otero, District Judge

BRIEF OF AMICUS CURIAE


CONFERENCE OF CHIEF JUSTICES
IN SUPPORT OF DEFENDANT-APPELLANT

Of Counsel: JOHN C. EASTMAN Cal. Bar No. 193726


Keith R. Fisher Counsel of Record
National Center for State Courts Center for Constitutional Jurisprudence
2425 Wilson Boulevard c/o Chapman Univ. Fowler School of Law
Suite 350 One University Drive
Arlington, Virginia 22201 Orange, California 92886
(703) 841-5610 (877) 855-3330
E-mail: kfisher@ncsc.org E-Mail: jeastman@chapman.edu

Counsel for Amicus Curiae Conference of Chief Justices


Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 2 of 30

CORPORATE DISCLOSURE STATEMENT

The Conference of Chief Justices is a non-profit corporation registered in Vir-

ginia. There is no parent company and no publicly held corporation that owns ten

percent or more of its stock.

i
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 3 of 30

TABLES OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ......................................................... i


TABLE OF AUTHORITIES ................................................................................... iii
IDENTITY AND INTEREST OF AMICUS CURIAE ..............................................1
INTRODUCTION .....................................................................................................2
ARGUMENT .............................................................................................................6
I. Access to Pre-Judgment Court Records in Civil Cases Is Not
Compelled by the First Amendment................................................................6
II. Creating a Constitutional Right to Immediate Or Even Same-Day
Access to Pre-Judgment Court Records Would Trammel Existing,
Well-Recognized Rights of Litigants and Unduly Burden the State
Courts in the Performance of Their Duties....................................................15
CONCLUSION ........................................................................................................22

ii
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 4 of 30

TABLE OF AUTHORITIES

CASES
Bank of Am. Natl Trust and Sav. Assn v. Hotel Rittenhouse Assocs.,
800 F.2d 339 (3d Cir. 1986) ........................................................................... 14-15
Bell v. Commonwealth Title & Trust Co.,
189 U.S. 131 (1903) .............................................................................................16
Caperton v. A.T. Massey Coal Co.,
556 U.S. 868 (2009) ...............................................................................................2
Courthouse News Service v. Planet,
2016 U.S. Dist. LEXIS 105197 (C.D. Cal. 2016) ..................................................4
Courthouse News Service v. Planet,
750 F.3d 776 (9th Cir. 2013) ............................................................................... 5-6
Cowley v. Pulsifer,
137 Mass. 392 (1884) ...........................................................................................11
Direct-Mail Service v. Registrar of Motor Vehicles,
296 Mass. 353, 5 N.E.2d 545 (1937)....................................................................16
Ex parte Drawbaugh,
2 App. D.C. 404 (1894) ........................................................................................10
Gannett Co., Inc. v. DePasquale,
443 U.S. 368 (1979) ...........................................................................................7, 8
Gregory v. Ashcroft,
501 U.S. 452 (1991) ...............................................................................................5
IDT Corp. v. eBay,
709 F.3d 1220 (8th Cir. 2013) ....................................................................... 13, 14
In re Caswell,
18 R.I. 835, 29 A. 259 (1893)...............................................................................22
In re Reporters Committee for Freedom of the Press,
773 F.2d 1325 (D.C. Cir. 1985).................................................................... passim
Nixon v. Warner Communications, Inc.,
435 U.S. 589 (1978) ......................................................................................... 9-11
OShea v. Littleton,
414 U.S. 488 (1974) ...............................................................................................6

iii
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 5 of 30

Park v. Detroit Free Press Co.,


72 Mich. 560, 40 N.W. 731 (1888) ......................................................... 11, 12, 13
Press-Enterprise Co. v. Superior Court,
464 U.S. 501 (1984) (Press-Enterprise I) ..............................................................7
Press-Enterprise Co. v. Superior Court,
478 U.S. 1 (1986) (Press-Enterprise II) .......................................................... 8, 14
Railroad Commission of Texas v. Pullman Co.,
312 U.S. 496 (1941) ...............................................................................................6
Republican Party of Minn. v. White,
536 U.S. 765 (2002) ...............................................................................................2
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) .................................................................................... 7, 9, 13
San Jose Mercury News, Inc. v. U.S. Dist. Court--N. Dist. (San Jose),
187 F.3d 1096 (9th Cir. 1999) ..............................................................................14
Sanford v. Boston Herald-Traveler Corp.,
318 Mass. 156, 61 N.E.2d 5 (1945)......................................................................11
Schmedding v. May,
85 Mich. 1, 48 N.W. 201 (1891) ..........................................................................11
Seattle Times Co. v. Rhinehart,
467 U.S. 20 (1984) .............................................................................................4, 8
Siedle v. Putnam Invs., Inc.,
147 F.3d 7 (1st Cir. 1998) ....................................................................................14
Siefert v. Alexander,
608 F.3d 974 (7th Cir. 2010) .................................................................................2
Whorton v. Gaspard,
239 Ark. 715, 393 S.W.2d 773 (1965) .................................................................16
Williams-Yulee v. Florida Bar,
135 S. Ct. 1656 (2015) ...........................................................................................2
Wolfson v. Concannon,
811 F.3d 1176 (9th Cir. 2016) ................................................................................2
Zemel v. Rusk,
381 U.S. 1 (1965) ...................................................................................................8

iv
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 6 of 30

STATUTES AND CONSTITUTIONAL PROVISIONS


CAL. GOVERNMENT CODE 12652(c) ......................................................................17
CAL. GOVERNMENT CODE 68150(l).........................................................................7
U.S. Const. amend. I ........................................................................................ passim
Wash. Const. Art. I, 7 ...........................................................................................18
Wash. Const. Art. I, 10 .........................................................................................18

RULES
Alaska Rules of Court, Rules of Administration, R. 37.5 .......................................19
Alaska Rules of Court, Rules of Administration, R. 37.6(c) ...................................17
Arizona Rules of the Supreme Court, R. 123(c) ............................................... 19, 20
Cal. Rule 2.570(c) ....................................................................................................17
F.R.A.P. 29 .................................................................................................................1
Hawaii R. 9.1(a) .......................................................................................................20
Idaho Court Administrative R.32(g)(20) .................................................................20
Idaho Court Administrative Rule 32(a) ...................................................................19
Idaho Court Administrative Rule 32(i)(1) ...............................................................17
Indiana Court Rules, Admin. R. 9(A) ......................................................................19
Maine Supreme Judicial Court, Admin. Order JB-05-20, III.A.2 ........................20
Missouri Court Operating Rule 2.02........................................................................19
Nevada Electronic Filing and Conversion Rules, R.14 ...........................................20
Nevada Policy for Handling Filed, Lodged, and Presumptively Confidential
Documents, R. 5 ...................................................................................................19
Nevada Policy for Handling Filed, Lodged, and Presumptively Confidential
Documents, R.6(c) ................................................................................................20
Nevada Rules Governing Sealing and Redacting Court Records, R. 1(3)-(4) ........19
Washington State Court Rules General Rule R.6(1)(iii) ......................................20
Washington State Court Rules General Rule 31(a) ..............................................18
Washington State Court Rules General Rule 31(e)(1)-(2) ...................................20

v
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 7 of 30

OTHER AUTHORITIES
Dorothy Samuels, The Selling of the Judiciary: Campaign Cash in the
Courtroom, N.Y. TIMES Apr. 15, 2008, at A22 .................................................18

vi
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 8 of 30

Pursuant to Federal Rule of Appellate Procedure 29, the Conference of Chief

Justices (the Conference) respectfully submits this brief amicus curiae in support

of Appellant. 1

IDENTITY AND INTEREST OF AMICUS CURIAE

The Conference was founded in 1949 to enable the highest judicial officers

of the States to discuss important matters of common interest, including improve-

ment of the administration of justice, rules and methods of procedure, rules of legal

and judicial ethics, and the organization and operation of state courts and judicial

systems. The Conference is comprised of the Chief Justices or Chief Judges of the

courts of last resort in all fifty states, the District of Columbia, the Commonwealths

of Puerto Rico and the Northern Mariana Islands, and the Territories of American

Samoa, Guam, and the Virgin Islands. The Conference has been a leading national

voice on important issues concerning the administration of justice in state courts.

This amicus brief is being filed pursuant to a policy unanimously approved

by the Conferences Board of Directors. The policy authorizes the filing of a brief

if critical interests of state courts are at stake, as they are in this case.

1
All parties to this appeal have consented to the filing of this brief. No counsel for
a party authored this brief in whole or in part, and no person other than amicus or
its counsel has made a monetary contribution intended to fund the preparation or
submission of this brief.

1
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 9 of 30

The Conference has filed amicus curiae briefs in prior cases, and other

courts have relied on these briefs. See, e.g., Caperton v. A.T. Massey Coal Co.,

556 U.S. 868, 889 (2009); id. at 901 (Roberts, C.J., dissenting); Republican Party

of Minn. v. White, 536 U.S. 765, 821 (2002) (Ginsburg, J., dissenting); Siefert v.

Alexander, 608 F.3d 974, 986 (7th Cir. 2010). The Conference recently partici-

pated as an amicus in Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), and

Wolfson v. Concannon, 811 F.3d 1176 (9th Cir. 2016) (en banc), where it advo-

cated positions ultimately adopted by the Supreme Court and this Court, respec-

tively.

Pursuant to the Conferences policy, this brief has been reviewed and ap-

proved by a special committee of the Conference chaired by the Chief Justice of

North Dakota and composed of the current or former Chief Justices of Arizona, In-

diana, New Hampshire, New Jersey, North Carolina, Pennsylvania, Texas, Wiscon-

sin, and Utah.

INTRODUCTION

The precise issue presented in this appeal is whether a county superior court

must, as a matter of constitutional mandate, make available to a news organization

newly filed civil complaints immediately upon receipt, even before they are re-

viewed and processed by the clerks office and made available to the judges of the

2
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 10 of 30

court, and regardless of the time of day the complaints are filed, whether the court-

house is then open for business, and whether the filings are paper or electronic.

Court funding is continually a critical issue, and the state courts are still

emerging from a period of financial instability that began with the financial crisis

of 2007 and led to layoffs, extended closures of courthouses, and prolonged cessa-

tion of jury trials. While the economics have improved somewhat, solvency is still

precarious. It will be threatened with significant upset if clerks are compelled to

hire more personnel or pay significant overtime in order to comply with orders

such as the one entered by the court below.

Appellee Courthouse News Service (CNS) is not a typical media outlet. Its

principal business focus consists of capturing civil complaint filings in chosen mar-

kets around the country and selling reports to its subscribers, a service for which it

charges each of them thousands of dollars per annum. Most of these subscribers

are law firms, which can search these reports for complaints against existing cli-

ents, many of whom have not yet been served, and otherwise use this information

for promotional and business generation purposes.

This litigation, and others like it being brought by CNS in other federal dis-

tricts, principally seeks to facilitate its boutique business model. CNSs claim of a

First Amendment right to same-day access to court records is predicated merely on

the remote implications of a constitutional text. In re Reporters Committee for

3
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 11 of 30

Freedom of the Press, 773 F.2d 1325, 1332 (D.C. Cir. 1985); see also id. n.5 (dis-

tinguishing an implied right of access from the expressly protected right of

freedom of speech . . . at issue in Seattle Times Co. v. Rhinehart, 467 U.S. 20

(1984)). 2

The court below held that the First Amendment does not compel same-day

access to court pleadings, Courthouse News Service v. Planet, 2016 U.S. Dist.

LEXIS 105197 at *39-*41 (C.D. Cal. 2016), but then went on to give CNS more

than it asked for by holding, first, that there is a First Amendment right to timely

access and then transmogrifying that right into something requiring not merely

same-day access but access as soon as the court receives the complaint. Id. at *43-

*45. In short, the district court said that the First Amendment does not require

same-day access to civil complaints but does require immediate access.

Nothing in law or logic justifies that result. Even assuming, arguendo, that

there is a First Amendment right to timely access, the district courts decision treats

processing new civil case filingsa simple, traditional, and widespread adminis-

trative process that should easily have passed constitutional muster as a routine

2
Rhinehart held that a newspaper has no First Amendment right to publish mate-
rial obtained in pretrial discovery and subject to a protective order. [R]estraints
placed on discovered, but not yet admitted, information are not a restriction on a
traditionally public source of information. 467 U.S. at 33.

4
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 12 of 30

time, place, and manner restrictionas though it were a prohibition on speech

subject to strict scrutiny.

How the state courts review, process, and accept for filing (redacted, if nec-

essary) complaints in civil cases or reject them is an area traditionally regulated

by the States, Gregory v. Ashcroft, 501 U.S. 452, 460 (1991), and central to the

efficient functioning of the State judiciary. Exercise of these functions should be

exclusive, and free from external interference, except so far as plainly provided by

the Constitution of the United States. Id. at 463 (internal citations omitted). The

decision below creates a brand new First Amendment righta right to immediate

access to civil complaint filingsout of whole cloth. Unsupported by existing

precedent, the district courts decision threatens to involve the federal courts in

day-to-day supervision of state court systems and to dictate how scarce state court

financial resources are expended nationwide.

Nor is the district courts decision compelled by any decision of this Court,

including the two decisions earlier in this case. As the Court acknowledged, The

scope of [the right to access of court documents in civil cases] is an important

question of first impression . . . . Courthouse News Service v. Planet, 750 F.3d

5
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 13 of 30

776, 789 (9th Cir. 2013) (emphasis added). 3 Indeed, this Court recognized in the

concluding section of its opinion that [t]here may be limitations on the publics

right of access to judicial proceedings, and mandating same-day viewing of unlim-

ited civil complaints may be one of them. Id. at 792-93. 4

ARGUMENT

I. Access to Pre-Judgment Court Records in Civil Cases Is Not Compelled


by the First Amendment

The court below assumed that the First Amendment requires access by the

media and the general public to all non-privileged court pleadings and pretrial ac-

tivities. This assumption is unfounded and misconceives the nature of any First

Amendment-based right of public access.

Existing case law draws several distinctions that the court below failed to

consider. These include distinctions between rights belonging to a party alone and

not to third parties such as the press; between criminal cases (and the concomitant

public interest in cases in which the power of the government is marshalled against

3
The decision did not address the First Amendment issue itself, only that absten-
tion under the Pullman and OShea doctrines was not warranted because of the im-
portance of the First Amendment claim at issue. 750 F.3d at 789. See OShea v.
Littleton, 414 U.S. 488 (1974); Railroad Commission of Texas v. Pullman Co., 312
U.S. 496 (1941).
4
The Court explicitly stated that it was taking no position on the ultimate merits of
CNSs [right to same-day access] claims. 750 F.2d at 793.

6
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 14 of 30

individual citizens) and civil cases involving only private parties; and between ac-

cess to judicial records post-judgment and pre-judgment. These distinctions are of

constitutional moment.

First, the Supreme Court has never held that there is a First Amendment

right of access to pre-judgment court papers, whether they be civil complaints or

other pre-trial documents. 5 Even in criminal cases, the Court unequivocally re-

jected the claim that the First Amendment afforded to third parties (whether the

press in particular, as in Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979), or

the general public more broadly) any constitutional right of access to pretrial pro-

ceedings. Rather, the First Amendment only requires public access to criminal tri-

als, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), and to jury voir

dire, because of the guarantees of open public proceedings in criminal trials.

Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise I).

By contrast, the Supreme Court in a civil case upheld a protective order on

pretrial discovery and held that even a litigant has no First Amendment right of

access to information made available only for purposes of trying his suit. Seattle

5
California, like a number of other States, has enacted a statute making trial court
records reasonably accessible to all members of the public. CAL. GOVT. CODE
68150(l). The very existence of such statutes strongly indicates that access to pre-
judgment court documents in civil cases is a matter of statutory grace, not constitu-
tional right.

7
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 15 of 30

Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984). The right to speak and publish

does not carry with it the unrestrained right to gather information, id. (citing Ze-

mel v. Rusk, 381 U.S. 1, 16-17 (1965)), and pretrial depositions and interrogato-

ries are not public components of a civil trial and were not open to the public at

common law . . . . Rhinehart, 467 U.S. at 33 (citing Gannett, 443 U.S. at 389).

Moreover, an order prohibiting dissemination of discovered information before

trial is not the kind of classic prior restraint that requires exacting First Amendment

scrutiny. Rhinehart, 467 U.S. at 33. (citing Gannett , 443 U.S. at 399 (Powell, J.,

concurring)).

If that is true of civil discovery, how much more is it true of an original civil

complaint, which constitutes merely a set of unproved factual allegations that are

subject to winnowing and modification (via motions to dismiss or for summary

judgment) and amendment, respectively, and which, like pretrial discovery, is not a

component of a civil trial. Rhinehart. 467 U.S. at 33. Indeed, even were one to

apply the stricter standard for criminal cases applied in Press-Enterprise Co. v. Su-

perior Court, 478 U.S. 1 (1986) (Press-Enterprise II), CNSs argument would fail.

In that case, a qualified First Amendment right of press accessnot to a document

but to an actual court proceeding (there, a preliminary hearing)was found to exist

if two conditions could be established: (1) a tradition of accessibility to such pro-

ceedings; and (2) that public access plays a particularly positive role in the actual

8
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 16 of 30

functioning of the process. Id. at 11. No such showing has been made here, and

the court below made no such findings.

An oft-cited D.C. Circuit case comprehensively analyzed whether there is a

First Amendment right of public access to pre-judgment judicial records. No Su-

preme Court decision deals with the precise issue of the publics First Amendment

rights to court records in civil cases. In re Reporters Committee for Freedom of

the Press, 773 F.2d 1325, 1330-31 (D.C. Cir. 1985) (emphasis in original). [N]ot

until 1980 [did] the Supreme Court [find] that the common core purpose of assur-

ing freedom of communication on matters relating to the functioning of govern-

ment shared by the various clauses of the First Amendment created a right to ob-

serve criminal trial proceedings. Id. at 1331 (emphasis in original) (quoting Rich-

mond Newspapers, 448 U.S. at 575). The principle has not yet been applied to ac-

cess to civil trials (though the Court has perhaps intimated that it obtains there, see

Richmond Newspapers, 448 U.S. at 580 n.17), much less to access to records in

civil trialsor, for that matter, even records in criminal trials. Reporters Commit-

tee, 773 F.2d at 1331. (emphasis in original).

In Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98 (1978), the

Supreme Court acknowledged that American courts had long recognized a general,

common law (as opposed to First Amendment) right to inspect and copy public

9
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 17 of 30

records and documents, including judicial records and documents but noted that

the right to inspect and copy judicial records is not absolute. Id. at 598.

Every court has supervisory power over its own records and files, and
access has been denied where court files might have become a vehicle
for improper purposes. For example, the common-law right of inspec-
tion has bowed before the power of a court to insure that its records are
not used to gratify private spite or promote public scandal through
the publication of the painful and sometimes disgusting details of a
divorce case. . . . Similarly, courts have refused to permit their files to
serve as reservoirs of libelous statements for press consumption, . . . or
as sources of business information that might harm a litigants compet-
itive standing . . . .

Id. (citations omitted).

The case law also draws a distinction (not mentioned by the court below) be-

tween access to judicial records after judgment and access to records prior to judg-

ment. [T]]he record or transcript . . . after judgment . . ., do (sic) not stand upon

the footing of original papers placed in the files of a court of original jurisdiction,

and where there has been no trial had or judgment entered thereon. Reporters

Committee, 773 F.2d at 1333 (quoting Ex parte Drawbaugh, 2 App. D.C. 404, 406

(1894) (emphasis in original)). It has been held, in one instance at least [and inti-

mated in another], that the court might withhold from a publisher of a newspaper

the right to inspect or take copies of papers or documents on file, for publication

before the trial of the cause. Reporters Committee, 773 F.2d at 1333-34 (quoting

Drawbaugh, 2 App. D.C. at 407, which in turn cited Schmedding v. May, 85 Mich.

10
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 18 of 30

1, 48 N.W. 201 (1891), and Cowley v. Pulsifer, 137 Mass. 392 (1884) (Holmes,

J.)). 6

Support for a pre-judgment non-access rule for court records can also be

found in a related common law rule involving the privilege against liability for def-

amation in the accurate reporting of public records. The privilege simply did not

extend to accusations contained in papers filed by a party and not yet brought be-

fore a judge or magistrate for official action. Reporters Committee, 773 F.2d at

1335 (emphasis in original) (quoting Sanford v. Boston Herald-Traveler Corp.,

318 Mass. 156, 158, 61 N.E.2d 5, 6 (1945), and citing Park v. Detroit Free Press

Co., 72 Mich. 560, 568-69, 40 N.W. 731, 734 (1888)).

The reasons that support the one rule support the other as well. Schmed-
dings perception that matters in a civil lawsuit involve private deal-
ings between private parties until made public in open court, or until
their truthfulness has been determined by the judgment or decree of
the court, . . . was the very basis for that courts earlier holding that
pre-judgment civil records do not come within the public records priv-
ilege:

One of the reasons why parties are privileged from suit for
accusations made in their pleadings is that the pleadings
are addressed to courts where the facts can be fairly tried,
and to no other readers. . . . The public have no rights to
any information on private suits till they come up for pub-
lic hearing or action in open court . . . .

6
Both Schmedding and Pulsifer were also cited by the Supreme Court in Warner
Communications, 435 U.S. at 597, and they assert as the common law rule that
there is no right of public access to prejudgment records in civil cases. Reporters
Committee, 773 F.2d at 1334.

11
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 19 of 30

Reporters Committee, 773 F.2d at 1335 (quoting Detroit Free Press, 72 Mich. at

568-69, 40 N.W. at 734) (emphasis added).

In sum, the tradition of public access to court proceedings does not extend to

pre-judgment access to court records in civil cases. Indeed, if the concerns about

abuse such as those identified above are sufficient to permit a complete prohibition

on dissemination of information gained during the discovery process or in other

pre-trial pleadings or proceedings, then a fortiori the lesser, temporary constraint

that results from mere delay of a day, or even several days, in the processing of

pleadings and other materials that have not been made public in open court does

not run afoul of either the First Amendment or the common law.

Second, there are significant differences between civil and criminal proceed-

ings, and between pre-trial and post-judgment access, that counsel caution before

extending the Supreme Courts constitutional rulings of access to criminal pro-

ceedings to the pre-trial civil records at issue here. Every aspect of a criminal case,

from the filing of the indictment to pre-trial suppression hearings to the trial itself,

involves the government acting in its sovereign capacity as a party. Public access

to such proceedings (and to the documents involved in them) furthers the com-

mon core purpose of assuring freedom of communication on matters relating to the

functioning of government that led the Supreme Court to find a First Amendment

12
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 20 of 30

right to observe criminal trial proceedings. 7 Richmond Newspapers, 448 U.S. at

575. In civil litigation between private parties, such as the present case, no First

Amendment interest in observing the functioning of the executive branch of gov-

ernment exists.

Although there is also a First Amendment interest in observing the function-

ing of the judicial branch, that interest is not triggered until a point in civil litiga-

tion that actually involves the judiciary. The public have no rights to any infor-

mation on private suits till they come up for public hearing or action in open court

. . . . Reporters Committee, 773 F.2d at 1335 (quoting Detroit Free Press, 72

Mich. at 568-69, 40 N.W. at 734) (emphasis added). Not only is the judiciary not

involved at the complaint filing stage but CNS wants access before a judge can

even be assigned to the case.

IDT Corp. v. eBay, 709 F.3d 1220, 1222-23 (8th Cir. 2013), involved a

sealed complaint in an antitrust suit, where the allegations were based in large part

on material obtained in discovery subject to a protective order in antecedent patent

litigation before the same trial judge. Shortly after filing, the parties settled the

7
To be sure, the First Amendment right of the media and the public to attend pub-
lic trials and speak or write about what they observe there serves two purposes in
criminal cases: enhancing fairness to the defendant when a trial is held in public,
and providing citizens the opportunity to observe the conduct of judicial proceed-
ings so that they can the more intelligently perform their duties as citizens (includ-
ing jury service and voting).

13
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 21 of 30

matter and filed a joint stipulation of dismissal. In a decision predicated on a fed-

eral common law right of access, the Eighth Circuit found no abuse of discretion in

the trial judges denial of a motion by an intervenor public interest group to unseal

the complaint but did remand for the judge to assess whether, in lieu of sealing the

entire complaint, redaction was practicable.

Significantly, the Eighth Circuit expressly rejected the intervenors argument

based on a right of public access grounded in the First Amendment. 8 The interve-

nor had established no strong historical tradition of public access to complaints in

civil cases that are settled without adjudication on the merits. Id. at 1224 n.* (ap-

plying the Press-Enterprise II standard).

Other circuits have either rejected the First Amendment claim outrightRe-

porters Committee, 773 F.2d at 1330-31; IDT, 709 F.3d at 1224or have limited

their decisions to federal common law. See Siedle v. Putnam Invs., Inc., 147 F.3d

7 (1st Cir. 1998) (holding that the Federal common law right of pretrial access does

not extend to attorney-client privileged documents); Bank of Am. Natl Trust and

8
This Courts decision in San Jose Mercury News, Inc. v. U.S. Dist. Court--N.
Dist. (San Jose), 187 F.3d 1096 (9th Cir. 1999), is not to the contrary. The deci-
sion there involved access to discovery documents based solely on federal common
law and the Federal Rules of Civil Procedure, and the court explicitly disclaimed
taking any position on whether the First Amendment bestows on the public a pre-
judgment right of access to civil court records. Id. at 1102 (emphasis in original).

14
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 22 of 30

Sav. Assn v. Hotel Rittenhouse Assocs., 800 F.2d 339, 343 (3d Cir. 1986) (distin-

guishing pre-trial documents from motions that had been presented for action by

the Court).

For the foregoing reasons, the district courts holding grounded in the First

Amendment is contrary to established precedent and should be reversed.

II. Creating a Constitutional Right to Immediate Or Even Same-Day Ac-


cess to Pre-Judgment Court Records Would Trammel Existing, Well-
Recognized Rights of Litigants and Unduly Burden the State Courts in
the Performance of Their Duties

Notwithstanding the friable constitutional foundation of the decision below

and the absence of any showing of a nationwide problem with public access to

state court records, CNS is relying on the district courts opinion when litigating

(or threatening to litigate unless its demands are met) this same issue in other fed-

eral districts, not just in California but elsewhere in the United States as well.

Whatever problems CNS may have encountered in one particular county court is

not a prescription for a one size fits all nationwide remedy, however. Unless

overturned, the district courts decision will be used to invalidate the rules and stat-

utes governing public accessall traditional matters of a States sovereign control

of its own court systemthroughout the country. The district courts ruling also

effectively nullifies a substantial body of federal and state court rulings that recog-

nize the right of a custodian of public records, including a clerk of court, to make

such reasonable regulations as will secure to him and his assistants full use of the

15
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 23 of 30

books and records of this office. Bell v. Commonwealth Title & Trust Co., 189

U.S. 131, 133 (1903). 9

Civil complaints are, as a matter of standard court practice everywhere, re-

viewed by the clerks office before they are accepted for filing. This processing

ensures that documents have been submitted for the correct case, that the docu-

ments are legible (or, in the case of electronic filings, properly formatted), and that

the appropriate fees have been paid. It is not uncommon for complaints to be mis-

filed in the wrong court. 10 Furthermore, many states have privacy laws that pro-

hibit revealing non-public information such as personal financial information (in-

cluding in some jurisdictions information contained in in forma pauperis applica-

tions); information about minors; medical information (including information

about mental health and disabilities, HIV/AIDS testing information, or treatment

9
See also Whorton v. Gaspard, 239 Ark. 715, 717, 393 S.W.2d 773, 774-775
(1965) (observing that, though the statute provided only that voting lists were sub-
ject to inspection by interested persons, [w]ithout doubt, reasonable restrictions
and conditions may be imposed [by the country clerk] with respect to the right to
use public records.); Direct-Mail Service v. Registrar of Motor Vehicles, 296
Mass. 353, 357, 5 N.E.2d 545, 547 (1937) (clarifying that, while the statute pro-
vided that records of the registrar shall be open to the inspection of any person
during reasonable business hours, one seeking to inspect the records must submit
to such reasonable supervision on the part of the custodian as will guard the safety
of the records and secure equal opportunity for all.).
10
CNSs insistence on same-day access leads, in that instance, to a rather absurd
resultaccess to a document without any newsworthiness whatsoever, one that
will shortly be rejected by the court without any case ever being docketed.

16
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 24 of 30

records for a party or witness); information about victims of rape or sexual assault;

name changes in domestic violence and stalking cases; guardianship and conserva-

torship proceedings; certain prejudgment attachment cases; and so forth. These

sorts of restrictions are especially common in the trusts and estates and domestic

relations (including child custody, child support, and paternity proceedings) dock-

ets. Such filingsincluding not only the complaint itself but any attachments and

exhibitsmust in many cases be reviewed for compliance with such state laws and

redaction 11 of any such non-public information.

Relatedly, it is not uncommon for complaints to be filed accompanied by a

request that they be placed, in whole or in part, under seal. Placing complaints un-

der seal can also be required by statute in certain types of cases, such as qui tam

actions. 12 Premature release of such documents to news media would not only be

inappropriateand in some cases, unlawfulbut could cause irreparable injury to

11
State courts make a deliberate effort to use the least restrictive means to accom-
modate public access and countervailing policies. See, e.g., Alaska Rules of Court,
Rules of Administration, R. 37.6(c); Idaho Court Administrative Rule 32(i)(1).
Redaction requirements are a part of that effort, since it would be easier, and cer-
tainly more efficient from the point of view of court administration, to make an af-
fected document simply inaccessible in its entirety. Such an effort does, however,
require a reasonable time for court clerks to complete the requisite work.
12
See, e.g., CAL. GOVERNMENT CODE 12652(c); Cal. Rule 2.570(c).

17
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 25 of 30

litigants, witnesses, or others who will be involved in or affected by the litigation

that ensues.

This case and other cases CNS has filed around the country foster the im-

pression that State courts are intransigent or somehow reluctant when it comes to

providing public access to court records. Nothing could be further from the truth.

State courts are responsible for resolving the vast majority of civil and criminal

cases in the United States, 13 but they are wholly committed to providing prompt

and reasonable public access to court filings other than those that, by court rule,

statute, or State Constitution, 14 must be kept confidential.

State courts generally favor open government and an informed citizenry and

promote government accountability. In furtherance of those goals they have poli-

13
Comparing statistics maintained for state courts by the National Center for State
Courts, and for federal courts by the Administrative Office of the United States
Courts reveals that more than 99 percent of all civil cases filed in the United States
in 2015 occurred in state courts. Nine years ago, Justice Breyer reportedly esti-
mated that figure at 95 percent. See Dorothy Samuels, The Selling of the Judici-
ary: Campaign Cash in the Courtroom, N.Y. TIMES Apr. 15, 2008, at A22.
14
See, e.g., WASHINGTON STATE COURT RULES General Rule 31(a) (It is the pol-
icy of the courts to facilitate access to court records as provided by Article I, Sec-
tion 10 of the Washington State Constitution. Access to court records is not abso-
lute and shall be consistent with reasonable expectations of personal privacy as
provided by article 1, Section 7 of the Washington State Constitution and shall not
unduly burden the business of the courts.).

18
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 26 of 30

cies that maximize accessibility to court records but do so in a manner that sup-

ports the role of the judiciary, preserves every litigants right to a fair trial, 15 does

not burden the ongoing business of the courts, and makes the most efficient and ef-

fective use of court personnel. At the same time, these policies are carefully con-

sidered and periodically reassessed by State high courts in order not only to

keep pace with technological changes but also to accommodate potentially coun-

tervailing policies such as promoting public safety, minimizing risk of injury to in-

dividuals, protecting the privacy rights and interests of State residents (including

the identities of jurors), protecting proprietary business information (including

trade secrets), and seeking to attenuate any reluctance of natural and juridical per-

sons to use the courts for dispute resolution. 16

In some states, providing access before any review or acceptance process by

court staff would expose the judicial branch to potential liability for disclosure of

15
In Maryland, for example, in connection with the recent, high-profile trial of po-
lice officers charged in connection with the arrest and death of Freddie Gray, the
clerks office made documents available once accepted by the court, but not at the
time of filing. Once the back-office process was completed, the documents were
uploaded online within 24-48 hours.
16
See, e.g., Rules of Arizona Supreme Court, R. 123(c); Alaska Rules of Court,
Rules of Administration, R. 37.5; Idaho Court Administrative Rule 32(a); Indiana
Court Rules, Admin. R. 9(A); Missouri Court Operating Rule 2.02; Nevada Rules
Governing Sealing and Redacting Court Records, R. 1(3)-(4); Nevada Policy for
Handling Filed, Lodged, and Presumptively Confidential Documents, R. 5.

19
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 27 of 30

documents or information that are supposed to be non-public under court rules, or

that may not even be properly submitted court documents to begin with. Court

staff are required to declare certain documents as non-public and send the filer a

notice of non-compliance instructing the filer to resubmit a properly redacted docu-

ment. 17 Administratively rejected complaints are complete nullities and are not of-

ficial court documents or records at all. The number of such filings is more fre-

quent than one might suppose and can number in the thousands each year in any

given State.

As is well-known, the state courts are only now beginning to emerge from a

crisis in funding that began with the financial crisis of 2007 and that led to multiple

days of court closings and lengthy suspensions of jury trials. A same-day access

requirement would demand from the state courts additional resources that they do

not haveincluding additional court stafffor copying and scanning. Further-

more, a same-day access requirementand even worse an available upon receipt

requirementwould present severe logistical problems for high-volume courts; it

17
In some jurisdictionse.g., Hawaii R. 9.1(a); Nevada Electronic Filing and Con-
version Rules, R.14; Nevada Policy for Handling Filed, Lodged, and Presump-
tively Confidential Documents, R.6(c); Washington State Court Rules, General
Rule 31(e)(1)-(2)the primary responsibility for redaction belongs to the lawyers
or parties filing the document, but frequently the clerks of the court have to do it.
Id., R.6(1)(iii); Rules of the Supreme Court of Arizona, R. 123(c); Idaho Court Ad-
ministrative R.32(g)(20); Maine Supreme Judicial Court, Admin. Order JB-05-20,
III.A.2. The public, including the media, will have access only to the redacted
version.

20
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 28 of 30

is simply not possible in such jurisdictions for the clerks to prepare file jackets for

all cases the day they are filed.

Also, a one size fits all public access rule of the sort CNS seeks is inappro-

priate, as all States have a variety of jurisdictions: some urban, some rural and re-

mote. In many States each of these diverse judicial districts has its own civil case

management system, sufficient or insufficient office staff, varying caseloads, and

e-filing/online access protocols.

There needs to be allowance for handling complex or voluminous docu-

ments and exhibits, particularly those that arrive late in the business day or at times

(such as weekends) when many courts and clerks offices are not open for busi-

ness. Documents must be filed, stamped, scanned, and docketed before they may

be considered true court documents. 18

In sum, by creating a new and unprecedented First Amendment mandate of

public access to civil complaint filings upon receipt, the decision below, if allowed

to stand, would impose an onerous, if not impossible, logistical burden on already

cash-strapped and poorly funded state court systems across the country. The dis-

trict courts order threatens to force modification of existing intake processes, often

to the detriment of quality control efforts, not just in California but nationwide. In

18
Even at the appellate level, documents must be examined to determine whether
they meet technical requirements of the States Rules of Appellate Procedure and
to verify whether documents and exhibits listed are complete.

21
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 29 of 30

some cases, it would even have the effect of preempting existing state law in a

manner not considered by the district court and certainly uncontemplated by our

federal system.

CONCLUSION

No constitutional right of access to pre-judgment court records in civil

cases has ever been recognized by the Supreme Court. The existence of such a

right does not follow from the distinct Sixth Amendment right of criminal defend-

ants to a public trial, or from the distinct First Amendment right of the media and

the public to attend public trials and speak about what they observe there. It does

not further either of the purposes served by those recognized rightsthe fairness to

the defendant that is enhanced when a trial is held in public, or the ability of citi-

zens to observe the conduct of judicial proceedings so that they can intelligently

perform their duties as citizens. Instead, a right to immediate access to pre-judg-

ment court records, before court clerks can process them and before they have been

reviewed by any judicial officer, would more likely be an open invitation for those

who would use such records to gratify private spite or promote public scandal.

Reporters Committee, 773 F.2d at 1331 (quoting In re Caswell, 18 R.I. 835, 836,

29 A. 259 (1893)).

22
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-1, Page 30 of 30

State courts are still recovering from the recent financial crisis, which re-

sulted in mass layoffs of court staff, extended closures of courthouses, and pro-

longed cessation of jury trials. Operating under minimal funding from their state

legislatures, the state courts remain in a precarious financial condition that cannot

reasonably sustain the additional expenditures that would be necessary in order to

comply with an access requirement as imposed by the district court.

Accordingly, the judgment of the district court should be reversed.

DATED: May 1, 2017

Respectfully submitted,

/s/ John C. Eastman

Of Counsel: JOHN C. EASTMAN Cal. Bar No. 193726


Keith R. Fisher Counsel of Record
National Center for State Courts Center for Constitutional Jurisprudence
2425 Wilson Boulevard Chapman Univ. Fowler School of Law
Suite 350 One University Drive
Arlington, Virginia 22201 Orange, California 92886
(703) 841-5610 (877) 855-3330
E-mail: kfisher@ncsc.org E-Mail: jeastman@chapman.edu

Counsel for Amicus Curiae Conference of Chief Justices

23
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-2, Page 1 of 1

Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28-1.1(f),


29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 16-55977
Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief.
I certify that (check appropriate option):

This brief complies with the length limits permitted by Ninth Circuit Rule 28-1.1.
The brief is words or pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.
The brief is 5,637 words or pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).
The brief is words or pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a
single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a
longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P.
32(a)(5) and (6).

This brief complies with the longer length limit authorized by court order dated
The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is
words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2
(a) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32
(f), if applicable. The briefs type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2
(c)(2) or (3) and is words or pages, excluding the portions exempted by Fed. R.
App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and
(6).

This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.
The brief is words or pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or Date May 1, 2017


Unrepresented Litigant
s/ John C. Eastman
("s/" plus typed name is acceptable for electronically-filed documents)

(Rev.12/1/16)
Case: 16-55977, 05/01/2017, ID: 10417037, DktEntry: 28-3, Page 1 of 1

9th Circuit Case Number(s) 16-55977, 16-56714

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

*********************************************************************************
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
May 1, 2017
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.

Signature (use "s/" format) s/ John C. Eastman

*********************************************************************************
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .

Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:

Signature (use "s/" format)