Adams et al v. Committee On Judicial Conduct & Disability et al

Northern District of California, cand-4:2015-cv-01046

ORDER DIRECTING PARTIES TO FILE SUPPLEMENTAL BRIEFING re {{25}} MOTION to Dismiss filed by Committee on Judicial Conduct & Disability, {{26}} MOTION to Dismiss Plaintiffs' Complaint filed by Cathy A. Catterson. Supplemental briefs filed by 11/16/15. Signed by Judge Yvonne Gonzalez Rogers on 10/29/15.

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 JOHN ADAMS, ET AL., 9 Case No. 15-cv-01046-YGR Plaintiffs, 10 ORDER DIRECTING PARTIES TO FILE v. SUPPLEMENTAL BRIEFING 11 COMMITTEE ON JUDICIAL CONDUCT & Re: Dkt. Nos. 25, 26 12 DISABILITY, ET AL., Northern District of California United States District Court 13 Defendants. 14 15 Plaintiffs John Adams and Shane Castle ("Plaintiffs") bring this action against Defendants 16 Committee on Judicial Conduct and Disability of the Judicial Conference of the United States 17 ("CJCD") and Cathy A. Catterson, in her official capacity as Circuit and Court of Appeals 18 Executive to the United States Courts for the Ninth Circuit ("Catterson"). CJCD and Catterson 19 each bring motions to dismiss the action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and each joins in the other's arguments in their respective motions. 20 (Dkt. Nos. 25 and 26.) 21 Among other things, Defendants argue that Plaintiffs have not stated a viable claim 22 because there is no right of access to government information under the First Amendment of the 23 United States Constitution, relying primarily on Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978). 24 However, after Houchins, the Supreme Court has held that "an arbitrary interference with access 25 to important information is an abridgment of the freedoms of speech and of the press protected by 26 the First Amendment," in the context of access to judicial proceedings. Richmond Newspapers, 27 Inc. v. Virginia, 448 U.S. 555, 583 (1980) (Stephens, in concurrence). The instant case appears to 28 1 present a question of first impression. Accordingly, additional briefing is required given that cases 2 following Richmond have recognized a right of access for the press and the public that arises from, 3 and is protected by, the First Amendment. Various limitations on public access to judicial 4 proceedings, both in the criminal and civil context, have been overturned as contrary to First Amendment guarantees. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) 5 (minor sex crime victims); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (voir 6 dire); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (preliminary hearing transcripts) 7 ("Press Enterprise II"); see also Courthouse News Serv. v. Planet, 750 F.3d 776, 786 (9th Cir. 8 2014) ("Though the Supreme Court originally recognized the First Amendment right of access in 9 the context of criminal trials…the federal courts of appeals have widely agreed that it extends to 10 civil proceedings and associated records and documents.") The Supreme Court has applied a 11 framework for determining whether restrictions on access to government information are 12 Northern District of California permissible under the First Amendment, which looks to: (1) whether historical experience United States District Court 13 counsels in favor of public access, and (2) whether public access would play a "significant positive 14 role in the functioning of the particular process in question." Press-Enterprise II, 478 U.S. at 8. 15 Although the Supreme Court has not applied the Press Enterprise II framework to judicial 16 misconduct proceedings, courts have found that restrictions on access to and disclosure of 17 evidence in such proceedings must pass muster under the First Amendment. See Kamasinski v. 18 Judicial Review Council, 44 F.3d 106, 109, 112 (2d Cir. 1994) (strict scrutiny applicable to rules 19 regarding disclosure of complaints and information learned in investigatory phase of judicial 20 misconduct proceedings, but once probable cause established, "even [the state's] most compelling 21 interests cannot justify a ban on the public disclosure of allegations of judicial misconduct"); First 22 Amendment Coal. v. Judicial Inquiry & Review Bd., 784 F.2d 467, 472 (3d Cir. 1986) (assuming 23 that public has a right of access at some point in judicial misconduct proceedings, Pennsylvania constitutional provision permitting access to records of judicial misconduct proceedings only if 24 discipline is recommended does not violate the First Amendment). And, as Plaintiffs note in their 25 opposition, the Supreme Court has employed the First Amendment to strike down a state statute 26 that imposed penalties for truthful reporting of details about a judicial disciplinary investigation. 27 Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 841 (1978). 28 2 1 The issue presented by Plaintiffs' complaint is whether the public has a right of access to 2 emails gathered in the course of a now-concluded judicial misconduct investigation which resulted 3 in a finding that the judge violated disciplinary rules by sending those emails. See In re Judicial 4 Misconduct, 751 F.3d 611, 623 (U.S. Jud. Conf. 2014).1 Defendants briefly touch on the Supreme Court's Press-Enterprise II framework in footnote 16 of the CJCD's opening brief. The question 5 presented to the Court here is one of restrictions on access, not restrictions on publication. 6 Consequently, it appears the Press-Enterprise II framework, rather than an analysis of prior 7 restraints on publication, is the correct one for considering the questions at issue in this action. 8 The Court requests supplemental briefing from the parties addressing the proper application of the 9 Press-Enterprise II framework here, and whether the complaint sets forth such a claim 10 sufficiently. 11 The parties are ordered to file supplemental briefs of no more than ten (10) pages by 12 Northern District of California November 16, 2015, addressing whether the complaint, as pleaded, states a claim for relief based United States District Court 13 upon refusal to disclose the emails at issue as an unconstitutional restriction on access, and against 14 which defendant(s) the claim is properly stated. 15 The Court will notify the parties by further order if supplemental reply briefing or oral 16 argument will be required. 17 IT IS SO ORDERED. 18 Dated: October 29, 2015 19 ______________________________________ 20 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 1 The CJCD, and the Ninth Circuit Judicial Council, found that Judge Cebull violated 27 judicial disciplinary rules when he sent hundreds of emails containing inappropriate messages related to race, politics, religion, gender, sexual orientation, and politically sensitive issues. In re 28 Judicial Misconduct, 751 F.3d at 623. 3