Courthouse News Service v. Michael Planet , 614 F. App'x 912 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
COURTHOUSE NEWS SERVICE, No. 14-56444
Plaintiff - Appellant, D.C. No. 2:11-cv-08083-R-MAN
v.
MEMORANDUM*
MICHAEL D. PLANET, in his official
capacity as Court Executive Officer/Clerk
of the Ventura County Superior Court,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted June 23, 2015**
Pasadena, California
Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.
Courthouse News Service (“CNS”) appeals the district court’s grant of
Michael Planet’s motion to dismiss. We have jurisdiction pursuant to 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. Reviewing de novo, we reverse and remand with instructions. ASARCO,
LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014).
The district court previously granted a motion to abstain from hearing this
case, which we reversed and remanded in a published opinion. Courthouse News
Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014). We held, inter alia, that the district
court lacked the discretion to abstain under Railroad Commission of Texas v.
Pullman Co., 312 U.S. 496 (1941), because of the important First Amendment
interest at stake. Courthouse News, 750 F.3d at 789. In so holding, we noted that
“there [was] no question that CNS . . . alleged a cognizable injury caused by the
Ventura County Superior Court’s denial of timely access to newly filed
complaints,” id. at 788, which, according to CNS’s complaint, include delays
“stretching up to 34 calendar days.” CNS’s complaint also alleged that many
courthouses across the country have adopted procedures to facilitate same-day
media access to civil complaints. For purposes of a motion to dismiss, all factual
allegations in the complaint are taken as true. Webb v. Smart Document Solutions,
LLC, 499 F.3d 1078, 1082 (9th Cir. 2007); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The district court misapplied this standard governing Rule
12(b)(6) motions when it granted Planet’s motion to dismiss CNS’s amended
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complaint for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).
In our prior opinion, we emphasized that “access to public proceedings and
records is an indispensable predicate to free expression about the workings of
government.” Courthouse News, 750 F.3d at 785. We explained that the federal
courts of appeals have widely agreed that this important First Amendment right of
access “extends to civil proceedings and associated records and documents.” Id. at
786. At the same time, we noted that this “right of access may be overcome by an
‘overriding [governmental] interest based on findings that closure is essential to
preserve higher values.’” Id. at 793 n.9 (quoting Leigh v. Salazar, 677 F.3d 892,
898 (9th Cir. 2012)). We also acknowledged that “[t]he delay in making the
complaints available may also be analogous to a permissible ‘reasonable
restriction[ ] on the time, place, or manner of protected speech.’” Id. (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
On remand, the district court narrowed the legal question to same-day access
as an abstract notion and held, as a matter of law, that the First Amendment right of
access does not mandate same-day access to civil complaints. The district court
erred by evaluating the question of same-day access as a purely legal question
divorced from the legal framework discussed in our prior opinion, and from the
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allegations in CNS’s complaint which allege delays in access to civil complaints
exceeding 33 days from filing. While the district court cited the correct Supreme
Court precedent, it failed to conduct the proper analysis dictated by that precedent.
The district court acknowledged “that a constitutional right to access to civil
complaints could arise under the Press-Enterprise test at some point during the
course of civil proceedings,” yet failed to determine whether the delays alleged in
CNS’s complaint, which must be taken as true at this stage of the proceeding,
implicated such a right. Thus, the district court disregarded our mandate by
erroneously ruling as a matter of law that filed civil complaints which have not yet
been the subject of a hearing are outside the scope of the First Amendment right of
access.
We again reverse and remand this case so that the district court may properly
evaluate the merits of CNS’s claims, consistent with our prior opinion. On
remand, we grant CNS’s request that the Clerk of the Court for the Central District
of California assign this case to a different district court judge upon remand.
Although we do not find personal bias, “unusual circumstances” warrant
reassignment here. Ellis v. U.S. Dist. Court (In re Ellis), 356 F.3d 1198, 1211 (9th
Cir. 2004) (en banc). We consider: “(1) whether the original judge would
reasonably be expected upon remand to have substantial difficulty in putting out of
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his or her mind previously expressed views or findings determined to be erroneous
or based on evidence that must be rejected, (2) whether reassignment is advisable
to preserve the appearance of justice, and (3) whether reassignment would entail
waste and duplication out of proportion to any gain in preserving the appearance of
fairness.” Id. (internal quotation marks omitted). A finding of either of the first
two factors is enough to support reassignment. United States v. Quach, 302 F.3d
1096, 1103 (9th Cir. 2002).
Here, the appearance of justice is served by assigning this matter to a
different judge on remand because the district court judge has expressed strong
views, inconsistent with our prior opinion, on the merits of this case, failed to
conduct the proper fact-specific inquiry, and dismissed this case before an answer
was filed twice. Assignment to a different district court judge will preserve the
appearance of justice. See Ellis, 356 F.3d at 1211. Moreover, because the case has
remained at a preliminary stage for three years, no disproportionate waste and
duplication of district court resources will result from the reassignment. See id.Therefore, on remand, the Clerk of the Court shall reassigned this case to a
different district court judge within the Central District of California.
REVERSED and REMANDED with instructions to the Clerk to assign
to a different district court judge.
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