Courthouse News Service v. Michael Planet

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

COURTHOUSE NEWS SERVICE, No. 11-57187
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-08083-
R-MAN
MICHAEL D. PLANET, in his official
capacity as Court Executive
Officer/Clerk of the Ventura County OPINION
Superior Court,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding

Argued May 8, 2013
Submitted April 7, 2014
Pasadena, California

Filed April 7, 2014

Before: John T. Noonan, Kim McLane Wardlaw,
and Mary H. Murguia, Circuit Judges.

Opinion by Judge Wardlaw
2 COURTHOUSE NEWS SERVICE V. PLANET

SUMMARY*

Civil Rights

The panel reversed the district court’s dismissal of a
complaint and remanded in an action brought pursuant to 42
U.S.C. § 1983 by a news organization alleging that the
Ventura County Superior Court’s failure to provide same-day
access to newly filed unlimited civil complaints violated the
news organization’s right of access to public judicial
proceedings under the First Amendment.

The panel held that the district court erred by abstaining
from hearing the case under Railroad Commission of Texas
v. Pullman Co., 312 U.S. 496 (1941), and O’Shea v. Littleton,
414 U.S. 488 (1974). The panel held that this case presented
an important First Amendment question involving the right of
access to public records and proceedings that should be
decided by the federal courts and that plaintiff’s requested
relief would not excessively intrude on sensitive state
functions. The panel noted that there may be limitations on
the public’s right of access to judicial proceedings, and
mandating same-day viewing of unlimited civil complaints
may be one of them, but the panel declined to take a position
on the ultimate merits of plaintiff’s claims, which the district
court had yet to address in the first instance.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 COURTHOUSE NEWS SERVICE V. PLANET 3

COUNSEL

Rachel Matteo-Boehm (argued), Roger Myers, David Greene,
and Leila Knox, Bryan Cave LLP, San Francisco, California,
for Plaintiff-Appellant.

Robert A. Naeve (argued), Erica L. Reilley, and Nathaniel P.
Garrett, Jones Day, Irvine, California, for Defendant-
Appellee.

Lucy A. Dalglish, Gregg P. Leslie, and Kristen Rasmussen,
Arlington, Virginia, for Amicus Curiae The Reporters
Committee for Freedom of the Press.

OPINION

WARDLAW, Circuit Judge:

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. In
courthouses around the country—large and small, state and
federal—CNS reporters review civil complaints on the day
they are filed. For many years, the Superior Court for the
State of California for the County of Ventura (“Ventura
County Superior Court”) provided CNS with prompt access
to newly filed “unlimited”1 civil complaints. Now, in contrast
with this prior practice, the Ventura County Superior Court

1
Virtually all matters of public interest and importance are “unlimited”
cases under California law. Actions seeking permanent injunctive relief,
Cal. Civ. Proc. Code § 580(b)(2), or with an amount in controversy
exceeding $25,000, id. §§ 85(a), 88, are classified as “unlimited.”
4 COURTHOUSE NEWS SERVICE V. PLANET

withholds newly filed unlimited complaints from the public
until they have been fully processed, which sometimes may
take days or weeks.

CNS appeals the district court’s order dismissing its
complaint for declaratory and injunctive relief against
Michael Planet (“Planet”), the Executive Officer/Clerk of the
Ventura County Superior Court. It alleges that the Ventura
County Superior Court’s failure to provide same-day access
to newly filed unlimited civil complaints violates its right of
access to public judicial proceedings under the First
Amendment to the United States Constitution. The district
court granted Planet’s motion to abstain from hearing the case
under Railroad Commission of Texas v. Pullman Co.,
312 U.S. 496 (1941), and O’Shea v. Littleton, 414 U.S. 488
(1974), which permit the federal courts to decline to decide
matters over which they have jurisdiction but which implicate
sensitive state interests. This case presents an important First
Amendment question, U.S. CONST. amend. I, that should be
decided by the federal courts, and CNS’s requested relief
would not excessively intrude on sensitive state functions.
We conclude that the district court erred by abstaining and
dismissing this action and, accordingly, reverse and remand.

I.

We treat the factual allegations in CNS’s complaint as
true for the purpose of reviewing the district court’s decision
to abstain.2 In his motion to dismiss, Planet explicitly

2
The “Motion to Dismiss and Abstain” that Planet filed in the district
court was not expressly styled as a motion under either Federal Rule of
Civil Procedure 12(b)(1) or Federal Rule of Civil Procedure 12(b)(6).
Planet now argues that it should be construed it as a Rule 12(b)(1) motion,
 COURTHOUSE NEWS SERVICE V. PLANET 5

represented to the district court that it was “obligated to
assume the truth of the complaint’s allegations,” citing
Ashcroft v. Iqbal, 556 U.S. 662 (2002). This representation
suggests that Planet’s motion was a motion to dismiss for
failure to state a claim upon which relief can be granted under
Federal Rule of Civil Procedure 12(b)(6), and that we should
take the well-pleaded facts in the complaint as true. Iqbal,
556 U.S. at 678; Alvarez v. Chevron Corp., 656 F.3d 925,
930–31 (9th Cir. 2011).

Even if we were to view Planet’s motion as a motion to
dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), it is a “facial” challenge to the federal court’s
exercise of jurisdiction, not a “factual” one. Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).3 A
factual challenge “rel[ies] on affidavits or any other evidence

while CNS contends that it is more properly viewed as a Rule 12(b)(6)
motion. We have not squarely held whether abstention is properly raised
under Rule 12(b)(6), Rule 12(b)(1), both, or neither. Compare, e.g.,
Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003) (reviewing the district
court’s decision to abstain pursuant to a Rule 12(b)(6) motion and noting
that, “[i]n debating the propriety of abstention, the parties . . . rely on the
facts alleged in the complaint”), with Scotts Co. LLC v. Seeds, Inc.,
688 F.3d 1154, 1159–60 (holding, on appeal from a dismissal under Rule
12(b)(1), that the district court abused its discretion in applying Colorado
River abstention), and Potrero Hills Landfill, Inc. v. Cnty. of Solano,
657 F.3d 876, 881 (9th Cir. 2011) (noting that “petitioners intervened . .
. and moved to dismiss under [Rules] 12(b)(6) and 12(b)(1), or in the
alternative to abstain from deciding the case” (emphasis added)). This
case does not require us to decide which Rule, if either, provides the
correct vehicle for a motion to abstain.
3
A “facial” attack asserts that a complaint’s allegations are themselves
insufficient to invoke jurisdiction, while a “factual” attack asserts that the
complaint’s allegations, though adequate on their face to invoke
jurisdiction, are untrue. Id.
6 COURTHOUSE NEWS SERVICE V. PLANET

properly before the court” to contest the truth of the
complaint’s allegations. St. Clair v. City of Chico, 880 F.2d
199, 201 (9th Cir. 1989); accord Savage v. Glendale Union
High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). Planet’s
motion did not do so. It expressly treated the complaint’s
allegations as true. Nor did the district court make any
findings of fact. Though Planet submitted evidence before
the district court suggesting that it would be difficult for the
Ventura County Superior Court to provide same-day access
to newly filed complaints, he did so only in response to
CNS’s motion for a preliminary injunction. Planet’s motion
to dismiss is therefore a facial Rule 12(b)(1) motion, if it is a
Rule 12(b)(1) motion at all. When reviewing the district
court’s grant of such a motion, we treat the factual allegations
in the complaint as true. See Safe Air for Everyone, 373 F.3d
at 1039.4

II.

CNS alleges that it is a news wire service that specializes
in reporting on civil lawsuits. It has about three thousand
individual and institutional subscribers nationwide, including
law firms, university and law school libraries, and major
media outlets such as the Los Angeles Times and Boston
Globe. It publishes sixteen reports on new litigation in
federal and state courts in California and enables subscribers
to receive email alerts about new filings involving matters of

4
We also consider and treat as true CNS’s factual allegations in the
exhibits attached to its complaint. See United States v. Ritchie, 342 F.3d
903, 907–08 (9th Cir. 2003); Parks Sch. of Bus., Inc. v. Symington,
51 F.3d 1480, 1484 (9th Cir. 1995) (“When a plaintiff has attached various
exhibits to the complaint, those exhibits may be considered in determining
whether dismissal was proper . . . .”).
 COURTHOUSE NEWS SERVICE V. PLANET 7

interest to them. CNS maintains a website with news stories
and commentary freely available to the general public.

To provide this extensive news coverage, CNS employs
more than one hundred reporters who daily visit courthouses
around the country to review recently filed civil complaints.
In state and federal courthouses throughout California and
across the United States, CNS is generally able to access civil
complaints on the day they are filed. For instance, at the Los
Angeles Division of the U.S. District Court for the Central
District of California, reporters have a key to a room where
complaints are placed in boxes for their review at the end of
each day, before the complaints have been processed. At the
San Jose Division of the U.S. District Court for the Northern
District of California, a clerk prints out a list of all new
complaints filed each day, and reporters go behind the
counter to view and scan any complaints they deem
noteworthy. At the San Francisco Division of the Northern
District, reporters go behind the counter to review complaints
filed each day even if the complaints have not yet been fully
docketed. The U.S. District Courts for the Southern and
Eastern Districts of California also provide same-day access
to new civil complaints.

In many California counties, the state Superior Court
provides same-day access to newly filed unlimited
complaints. At the Superior Court for Contra Costa County,
located in Martinez, California, unlimited civil complaints are
placed in a media bin at 4:00 p.m. daily, and reporters are
permitted to review the complaints until 4:45 p.m. even
though the court closes to the general public at 3:00 p.m. At
the Santa Monica branch of the Superior Court for Los
Angeles County, reporters can view the cover page of all
newly filed complaints each afternoon and then request and
8 COURTHOUSE NEWS SERVICE V. PLANET

receive the full text of any complaint of interest. At the
Superior Court for Santa Clara County in San Jose, reporters
may view all unlimited civil complaints filed by 3:30 pm
each day before they have been fully processed. In Riverside
County, the Clerk of the Superior Court enabled same-day
access to unlimited civil complaints by shifting employees’
schedules to begin and end work later in the day.

Busy courts in other states do the same. At the New York
County Supreme Court, the court of general jurisdiction for
Manhattan, court officials place paper copies of new
complaints in a secure area behind the counter where
reporters can view the complaints on the day of filing. At the
state trial court in Albuquerque, New Mexico, a CNS reporter
is given a “review pile” of new complaints on the day they
are filed, before they have been fully processed or made
available on the internet.

CNS began regular coverage of new civil case filings at
the Ventura County Superior Court in 2001, and the same
reporter has been responsible for its coverage since then. The
reporter initially visited the Ventura County Superior Court
once or twice a week, and was able to review the large
majority of the unlimited civil complaints that had been filed
since her last visit. Beginning in early 2008, however, the
clerk’s office implemented “a series of small and large
changes that made . . . review of new civil complaints less
timely and more difficult,” including, ultimately, a rule that
limited the reporter to viewing twenty-five complaints each
day. CNS and court staff worked out an informal
arrangement that would allow CNS’s reporter to access newly
filed unlimited complaints before they were fully processed.
The Ventura County Superior Court did not adhere to this
arrangement, however, and court staff soon began
 COURTHOUSE NEWS SERVICE V. PLANET 9

withholding complaints until after they had been fully
processed.

In November 2010, CNS began covering the Ventura
County Superior Court on a daily basis. It again sought to
work out an informal procedure to enable same-day access
for its reporter, but it could not reach agreement with court
staff. In June 2011, CNS’s counsel wrote to Planet,
explaining that the delays in access were “effectively denials
of access” and requesting that complaints be made available
on the day of filing before being fully processed. CNS’s
counsel noted that many other courts, in California and
elsewhere, allowed reporters to access complaints before full
processing was complete. Three weeks later, Planet denied
this request. Citing “serious resource shortages as a result of
budget reductions,” Planet explained that the Ventura County
Superior Court could not “prioritize [same-day] access over
other priorities and mandates.” He refused to make
complaints available before they had been fully processed,
noting that “the Court must ensure the integrity of all filings.”
In the summer of 2011, CNS’s reporter experienced delays in
accessing unlimited civil complaints of up to thirty-four
calendar days.

On September 29, 2011, CNS filed this action under
42 U.S.C. § 1983 in the U.S. District Court for the Central
District of California. It claimed that the Ventura County
Superior Court’s withholding of newly filed unlimited civil
complaints violated its right of access to public proceedings
under the First Amendment and federal common law.5 CNS

5
It also alleged a violation of the California Rules of Court, but CNS
conceded below that this claim was barred by the Eleventh Amendment
and does not appeal its dismissal.
10 COURTHOUSE NEWS SERVICE V. PLANET

sought declaratory relief and preliminary and permanent
injunctive relief. It requested an injunction “prohibiting”
Planet from “continuing his policies resulting in delayed
access to new unlimited jurisdiction civil complaints and
denying Courthouse News timely access to new civil
unlimited jurisdiction complaints on the same day they are
filed, except as deemed permissible following the appropriate
case-by-case adjudication.”

Planet moved the district court to abstain and dismiss
CNS’s complaint. As Planet pointed out in his motion, an
existing California statute requires that trial court records of
all kinds “shall be made reasonably accessible to all members
of the public.” Cal Gov’t Code § 68150(l). The statute does
not define the phrase “reasonably accessible,” and the parties
dispute what that phrase actually requires. Planet argued that
litigation in state court to clarify the meaning of § 68150(l)
could obviate any federal constitutional issue, and that CNS’s
suit presented significant federalism concerns because, if
CNS prevailed, federal district courts would, in effect, dictate
how the state courts should allocate scarce resources.

The district court granted the motion to abstain and
dismiss on November 30, 2011. It “abstain[ed] and
dismisse[d]” CNS’s federal claims “under the equitable
abstention doctrine enunciated in O’Shea v. Littleton,
414 U.S. 488 (1974), and its progeny,” reasoning that CNS’s
requested relief would interfere with the day-to-day
administration of the Ventura County Superior Court and
might require the federal courts to dictate the spending
priorities of the California judiciary. The district court
“further abstain[ed] and dismisse[d]” CNS’s claims under the
Pullman doctrine, noting that the federal constitutional
question would be avoided if the California courts construed
 COURTHOUSE NEWS SERVICE V. PLANET 11

Cal. Gov’t Code § 68150(l) to require same-day access to
newly filed unlimited civil complaints.

III.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the district court’s decision to invoke Pullman
abstention under a modified abuse of discretion standard.
Smelt v. Cnty. of Orange, 447 F.3d 673, 678 (9th Cir. 2006).
We first review de novo whether the requirements for
Pullman abstention are satisfied. Id.; Fireman’s Fund Ins.
Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir. 2002). If they
are not, the district court has “little or no discretion” to
abstain; if they are, we review the decision to abstain for an
abuse of discretion. Almodovar v. Reiner, 832 F.2d 1138,
1140 (9th Cir. 1987).

The proper standard of review for the district court’s
decision to abstain under O’Shea is unsettled. See E.T. v.
Cantil-Sakauye, 682 F.3d 1121, 1123 n.3 (9th Cir. 2011) (per
curiam), cert. denied, 133 S. Ct. 476 (2012). CNS argues that
O’Shea abstention is a particular species of abstention under
Younger v. Harris, 401 U.S. 37 (1971), and that we therefore
review the district court’s decision de novo. See Potrero
Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 881 (9th
Cir. 2011). Planet contends that O’Shea abstention is its own
distinct form of abstention, and that we should review the
district court’s decision under a modified abuse of discretion
standard, as we review its decision to abstain under the
Pullman doctrine. See World Famous Drinking Emporium,
Inc. v. City of Tempe, 820 F.2d 1079, 1081–82 (9th Cir.
1987). Even under the modified abuse of discretion standard,
however, we first review de novo whether the legal
requirements for abstention are satisfied. See Fireman’s
12 COURTHOUSE NEWS SERVICE V. PLANET

Fund Ins. Co., 302 F.3d at 939. Because we ultimately
determine that they are not, we would reverse the district
court’s decision under either standard of review, and we need
not decide which one applies. See E.T., 682 F.3d at 1123 n.3.

IV.

In Railroad Commission of Texas v. Pullman Co.,
312 U.S. 496 (1941), the Supreme Court declined to
adjudicate a “substantial constitutional issue” that would be
avoided by first giving the Texas courts the opportunity to
decide whether the challenged regulation was valid under
Texas law. Id. at 498–99. The Court reasoned that abstaining
from hearing the case would prevent it from “touch[ing] a
sensitive area of social policy upon which the federal courts
ought not to enter unless no alternative to its adjudication is
open.” Id. at 498. The “sensitive” issue avoided was whether
Texas’s Jim Crow requirement that a white “conductor”
rather than a black “porter” supervise every railroad sleeper
car violated the Fourteenth Amendment. Id. at 497.
Notwithstanding its ignominious origins, the doctrine of
“Pullman abstention” remains in force. See generally Lauren
Robel, Riding the Color Line: The Story of Railroad
Commission of Texas v. Pullman Co., in FEDERAL COURTS
STORIES 163 (Vicki C. Jackson & Judith Resnik eds., 2010).
Pullman abstention is rarely appropriately invoked in cases
implicating the First Amendment, however, and we conclude
that the district court erred by dismissing this case under the
Pullman doctrine.

A.

Pullman abstention “is an extraordinary and narrow
exception to the duty of a district court to adjudicate a
 COURTHOUSE NEWS SERVICE V. PLANET 13

controversy.” Wolfson v. Brammer, 616 F.3d 1045, 1066 (9th
Cir. 2010) (internal alterations and quotation marks omitted).
The doctrine does not “exist for the benefit of either of the
parties but rather for ‘the rightful independence of the state
governments and for the smooth working of the federal
judiciary.’” San Remo Hotel v. City & Cnty. of S.F., 145 F.3d
1095, 1105 (9th Cir. 1998) (quoting Pullman, 312 U.S. at
501). Over time, we have developed three independently
mandated requirements to permit the district court to exercise
discretion to abstain under Pullman:

(1) the case touches on a sensitive area of
social policy upon which the federal courts
ought not enter unless no alternative to its
adjudication is open, (2) constitutional
adjudication plainly can be avoided if a
definite ruling on the state issue would
terminate the controversy, and (3) the proper
resolution of the possible determinative issue
of state law is uncertain.

Porter v. Jones, 319 F.3d 483, 492 (9th Cir. 2003) (internal
alteration and quotation marks omitted).

Pullman abstention “is generally inappropriate when First
Amendment rights are at stake.” Wolfson, 616 F.3d at 1066
(internal alterations and quotation marks omitted). We have
held that the first requirement for Pullman abstention is
“almost never” satisfied in First Amendment cases “because
the guarantee of free expression is always an area of
particular federal concern.” Ripplinger v. Collins, 868 F.2d
1043, 1048 (9th Cir. 1989); accord Wolfson, 616 F.3d at 1066
(rejecting Pullman abstention in challenge to limits on speech
by candidates for elected judicial office); Porter, 319 F.3d at
14 COURTHOUSE NEWS SERVICE V. PLANET

492–93 (rejecting Pullman abstention in challenge to
threatened prosecution of operators of “vote swapping”
website); Sable Commc’ns of Cal. Inc. v. Pacific Tel. & Tel.
Co., 890 F.2d 184, 190–91 (9th Cir. 1989) (rejecting Pullman
abstention in challenge to policy authorizing disconnection of
telephone service for the transmission of explicit messages);
Playtime Theaters, Inc. v. City of Renton, 748 F.2d 527, 532
(9th Cir. 1984) (rejecting Pullman abstention in challenge to
zoning ordinance regulating adult movie theaters), rev’d on
other grounds, 475 U.S. 41 (1986).6

The only First Amendment case in which we have ever
found the first requirement for Pullman abstention to be
satisfied, Almodovar v. Reiner, 832 F.2d 1138 (9th Cir.
1987), was procedurally aberrational. There, the plaintiffs
had already reached the California Supreme Court in a
pending case that presented the same issues as their federal
suit, so they would not need to “undergo the expense or delay
of a full state court litigation” while their federal case was
stayed. Id. at 1140; see Porter, 319 F.3d at 493–94
(distinguishing Almodovar on the ground that it involved “an

6
The second and third requirements are plainly satisfied in this case.
California law provides that court records shall be “reasonably accessible”
to the public. Cal. Gov’t Code § 68150(l). A construction of that term
that would require same-day access to filed unlimited civil complaints
would provide CNS the relief it seeks. Therefore, “constitutional
adjudication could be avoided by a state ruling.” Wolfson, 616 F.3d at
1066. Moreover, the meaning of “reasonably accessible” is unclear. No
published decision of a California court has interpreted that term, so
“resolution of the state law issue is uncertain.” Id.; see also L.A. Times v.
Cnty. of L.A., 956 F. Supp. 1530, 1531 (C. D. Cal. 1996) (observing that
claims under Cal. Gov’t Code § 68150 “are novel” and “raise issues of
first impression”).
 COURTHOUSE NEWS SERVICE V. PLANET 15

unusual procedural setting”). These exceptional factors are
not present here.

Planet claims that this line of cases is inapposite, arguing
that “this is not a ‘free expression’ case,” but simply a case in
which the government has declined to make information it
possesses available to the public. Under some circumstances,
the mere “governmental denial of access to information in its
possession” does not raise any free speech issues. L.A. Police
Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 40
(1999). For instance, a state law placing conditions on public
access to arrestees’ home addresses is not subject to a facial
challenge on free speech grounds because the government is
under no obligation to make those addresses public at all. Id.

Here, however, CNS asserts its First Amendment right of
access to judicial and other public proceedings. See Press-
Enterprise Co. v. Superior Court (Press-Enterprise II),
478 U.S. 1 (1986). It is highly doubtful that “California could
decide not to give out [the complaints] at all without violating
the First Amendment.” Id. (emphasis added); cf. Rushford v.
New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.
1988) (holding that the First Amendment right of access
applies to a summary judgment motion in a civil case).
Though the government may sometimes withhold information
without violating the expressive rights protected by the First
Amendment, the First Amendment right of access to public
proceedings—where it applies—is inextricably intertwined
with the First Amendment right of free speech. See Globe
Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982).
This difference in the precise First Amendment right asserted
by CNS does not in any way diminish the principles
underlying our rule that federal courts should not invoke
Pullman abstention in cases implicating First Amendment
16 COURTHOUSE NEWS SERVICE V. PLANET

rights. CNS’s claims, like other First Amendment claims,
raise issues of particular federal concern.

B.

The Supreme Court has repeatedly held that access to
public proceedings and records is an indispensable predicate
to free expression about the workings of government. In the
foundational case, Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980), the Court reasoned that “[f]ree speech
carries with it some freedom to listen.” Id. at 576 (plurality
opinion). It held that the First Amendment guarantees of
freedom of speech and freedom of the press, “standing
alone,” enabled access to criminal trials. Id. Otherwise,
those rights “would lose much meaning if access to . . . the
trial could . . . be foreclosed arbitrarily.” Id. at 577. The
Court later clarified that the First Amendment protects the
right of public access, even though it is not explicitly
enumerated therein, because “a major purpose of that
Amendment was to protect the free discussion of
governmental affairs.” Globe Newspaper Co., 457 U.S. at
604 (internal quotation marks omitted). The right of access
is thus an essential part of the First Amendment’s purpose to
“ensure that the individual citizen can effectively participate
in and contribute to our republican system of self-
government.” Id.

We have similarly explained that the First Amendment
right of access exists to enable free expression about
important issues. “By guaranteeing that the individual citizen
can effectively participate in and contribute to our republican
system of self-government, the First Amendment right of
access ensures that th[e] constitutionally protected discussion
of governmental affairs is an informed one.” Cal. First
 COURTHOUSE NEWS SERVICE V. PLANET 17

Amendment Coal. v. Woodford, 299 F.3d 868, 874 (9th Cir.
2002) (internal quotation marks omitted). “Open government
has been a hallmark of our democracy since our nation’s
founding. . . . Indeed, this transparency has made possible the
vital work of . . . journalists who have strengthened our
government by exposing its flaws.” Leigh v. Salazar,
677 F.3d 892, 897 (9th Cir. 2012). By enabling the free
discussion of governmental affairs, the right of access
strengthens the core ‘marketplace’ of political ideas that the
Founders sought to protect. See Roth v. United States,
354 U.S. 476, 483–84 (1957) (“[T]he unconditional phrasing
of the First Amendment was not intended to protect every
utterance. . . . The protection given speech and press was
fashioned to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the
people.”); see also Alexander Meiklejohn, The First
Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 255
(“The First Amendment . . . protects the freedom of those
activities of thought and communication by which we
‘govern.’”).

Though the Supreme Court originally recognized the First
Amendment right of access in the context of criminal trials,
see Richmond Newspapers, 448 U.S. 555, the federal courts
of appeals have widely agreed that it extends to civil
proceedings and associated records and documents. See, e.g.,
N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d
286, 305 (2d Cir. 2011) (finding a right of access to
administrative civil infraction hearings); Publicker Indus.,
Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984) (“We hold
that the First Amendment does secure a right of access to
civil proceedings.”); In re Cont’l Ill. Sec. Litig., 732 F.2d
1302, 1308 (7th Cir. 1984) (finding a right of access to
litigation committee reports in shareholder derivative suits);
18 COURTHOUSE NEWS SERVICE V. PLANET

Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n,
710 F.2d 1165, 1177 (6th Cir. 1983) (holding that the First
Amendment limits judicial discretion to seal documents in a
civil case). The California Supreme Court has also so held.
See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court,
980 P.2d 337, 361 (Cal. 1999). Though we have not
expressly held that the First Amendment right of access
encompasses civil cases, we have recognized a right of access
to executions, documents related to a criminal defendant’s
pretrial release, and criminal jury voir dire, among other
proceedings. Cal. First Amendment Coal., 299 F.3d at 877
(executions); Seattle Times Co. v. U.S. Dist. Court, 845 F.2d
1513, 1519 (9th Cir. 1988) (pretrial release documents);
United States v. Brooklier, 685 F.2d 1162, 1168–69 (9th Cir.
1982) (voir dire). We have also applied the Press-Enterprise
II framework to evaluate right of access claims in a variety of
nonjudicial contexts. See, e.g., Cal-Almond, Inc. v. U.S.
Dep’t of Agric., 960 F.2d 105, 109 (9th Cir. 1992) (finding a
“serious constitutional question” as to whether the plaintiff
was entitled to access a list of almond growers eligible to vote
in a referendum on a federal regulatory order).

The news media’s right of access to judicial proceedings
is essential not only to its own free expression, but also to the
public’s. The Supreme Court has explained: “[I]n a society
in which each individual has but limited time and resources
with which to observe at first hand the operations of his
government, he relies necessarily upon the press . . . . With
respect to judicial proceedings in particular, the function of
the press serves to . . . bring to bear the beneficial effects of
public scrutiny upon the administration of justice.” Cox
Broad. Corp. v. Cohn, 420 U.S. 469, 491–92 (1975). We
have observed that the news media, when asserting the right
of access, “are surrogates for the public. . . . The free press is
 COURTHOUSE NEWS SERVICE V. PLANET 19

the guardian of the public interest, and the independent
judiciary is the guardian of the free press.” Leigh, 677 F.3d
at 900 (internal quotation marks omitted); see also ERWIN
CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND
POLICIES § 11.6.3 (4th ed. 2011) (“[W]ithout a right of access
to government papers and places the people will be denied
information that is crucial in monitoring government and
holding it accountable. The press obviously plays a crucial
role in this regard.”).

It is thus well-established that the right of access to public
records and proceedings is “necessary to the enjoyment” of
the right to free speech. Globe Newspaper Co., 457 U.S. at
604; Cal. First Amendment Coal., 299 F.3d at 874.

C.

CNS’s First Amendment right of access claim falls within
the general rule against abstaining under Pullman in First
Amendment cases. CNS’s right of access claim implicates
the same fundamental First Amendment interests as a free
expression claim, and it equally commands the respect and
attention of the federal courts.

We join the Second Circuit in reaching this conclusion.
In Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100 (2d
Cir. 2004), Connecticut newspapers challenged the state court
system’s longstanding practice of sealing docket sheets in
certain civil cases, sometimes in the absence of any court
order so requiring. Id. at 86–89. The Second Circuit held
that the press and the public had a qualified First Amendment
right of access to the docket sheets, reasoning that “docket
sheets provide a kind of index to judicial proceedings and
documents, and endow the public and press with the capacity
20 COURTHOUSE NEWS SERVICE V. PLANET

to exercise their rights guaranteed by the First Amendment.”
Id. at 93. The Second Circuit further held that the district
court properly declined to abstain under the Pullman doctrine
for two reasons: first, because there was “no applicable state
statute” construction of which would avoid the constitutional
issues, and second, because “the weight of the First
Amendment issues involved counsels against abstaining.” Id.
at 100.

We disfavor abstention in First Amendment cases because
of the “risk . . . that the delay that results from abstention will
itself chill the exercise of the rights that the plaintiffs seek to
protect by suit.” Porter, 319 F.3d at 487; see also Zwickler
v. Koota, 389 U.S. 241, 252 (1967) (explaining that, in a First
Amendment facial challenge, “to force the plaintiff who has
commenced a federal action to suffer the delay of state court
proceedings might itself effect the impermissible chilling of
the very constitutional right he seeks to protect”).

The concern that a delay in litigation will itself chill
speech is also implicated here. As an initial matter, we do not
believe that the norm against Pullman abstention in First
Amendment cases must be limited to instances in which the
plaintiff challenges a statute that directly regulates
expression. Government action that does not directly prohibit
expressive activity may nonetheless raise profound First
Amendment concerns. See, e.g., Laird v. Tatum, 408 U.S. 1,
12–13 (1972) (“[G]overnmental action may be subject to
constitutional challenge even though it has only an indirect
effect on the exercise of First Amendment rights.”); NAACP
v. Alabama, 357 U.S. 449, 462 (1958) (explaining that
“compelled disclosure of affiliation with groups engaged in
advocacy may constitute as effective a restraint on freedom
 COURTHOUSE NEWS SERVICE V. PLANET 21

of association” as overly broad statutes are restraints on
speech).

Moreover, this case does involve expressive activity. As
in virtually every other First Amendment case, abstention
here risks stifling the expression of both the plaintiff and the
public. 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. Globe Newspaper Co.,
457 U.S. at 604 (internal quotation marks omitted). In this
instance, the deterred expression is not an adult film,
Playtime Theaters, Inc., 748 F.2d at 532, or a sexually
explicit phone message, Sable Commc’ns of Cal. Inc.,
890 F.2d at 186, but informed public discussion of ongoing
judicial proceedings. The purpose of CNS’s effort to timely
access filed unlimited civil complaints is to report on
whatever newsworthy content they contain, and CNS cannot
report on complaints the Ventura County Superior Court
withholds.

Planet incorrectly contends that CNS may not claim its
expression is chilled by the delay in access to complaints
because it is not subject to prosecution or punishment. This
assertion relies on case law holding that a plaintiff must be
prospectively subject to “regulatory, proscriptive, or
compulsory” government action to have standing to bring a
facial First Amendment challenge against a statute that has
not been directly enforced against him. Laird v. Tatum,
408 U.S. 1, 11 (1972); Reporters Comm. for Freedom of the
Press v. Am. Tel. & Tel. Co., 593 F.2d 1030, 1052 (D.C. Cir.
1978); see also L.A. Police Dep’t v. United Reporting Publ’g
Corp., 528 U.S. 32, 41 (1999) (Scalia, J., concurring) (finding
no “‘chill’ upon speech that would allow a plaintiff to
22 COURTHOUSE NEWS SERVICE V. PLANET

complain about the application of the statute to someone
other than himself”). Here, however, there is no question that
CNS itself has alleged a cognizable injury caused by the
Ventura County Superior Court’s denial of timely access to
newly filed complaints. We are simply considering, for
purposes of reviewing the district court’s decision to abstain,
whether this alleged violation of CNS’s First Amendment
right of access also harms its free speech interests.

We believe it clearly does, and we do not find it
meaningful to our analysis that the allegedly unlawful
withholding of public judicial records, rather than the
allegedly unlawful threat of prosecution, is the cause of this
harm. Our precedent is ultimately concerned with
abstention’s effect on the plaintiff’s ability to exercise “‘the
very constitutional right he seeks to protect.’” Porter,
319 F.3d at 493 (quoting Zwickler, 389 U.S. at 252); J-R
Distribs., Inc. v. Eikenberry, 725 F.2d 482, 488 (9th Cir.
1984), rev’d on other grounds sub nom. Brockett v. Spokane
Arcades, Inc., 472 U.S. 491 (1985). Even though it is not
subject to prosecution, CNS will be unable to access judicial
records and report on newsworthy proceedings during “the
delay that comes from abstention . . . itself.” Porter, 319 F.3d
at 492. Like other First Amendment plaintiffs, CNS thus
faces the possibility that the official conduct it challenges will
prevent it from engaging in protected activity during the
pendency of the state court litigation.

Abstention also risks harming the public’s First
Amendment interests. The general public has the same right
of access as does the media. See Cal. First Amendment
Coal., 299 F.3d at 873 n.2. Therefore, if the Ventura County
Superior Court’s policy of withholding filings violates CNS’s
First Amendment rights, it also violates the rights of anyone
 COURTHOUSE NEWS SERVICE V. PLANET 23

else who has tried to access a complaint—or was deterred
from trying because he did not think it was possible. More
important, if CNS’s protected expression is delayed while the
litigation proceeds in state court, then the expression of the
newspapers, lawyers, libraries, and others who rely on CNS
for information will also be stifled.7 CNS is a “surrogate[] for
the public,” Leigh, 677 F.3d at 900 (internal quotation marks
omitted), and the public cannot discuss the content of
unlimited civil complaints about which it has no information.

CNS’s right of access claim presents the same essential
concerns that have compelled us to reject Pullman abstention
in every First Amendment case except one that was uniquely
postured. To hold otherwise would disregard the principle
that the right of access is “necessary to the enjoyment” of the
right to free speech. Globe Newspaper Co., 457 U.S. at 604.
The scope of CNS’s right is an important question of first
impression and a matter of “particular federal concern” that
removes this case from the realm of “sensitive” state issues
that federal courts should hesitate to address. Ripplinger,
868 F.2d at 1048. Because of “the weight of the First
Amendment issues involved,” Hartford Courant Co.,
380 F.3d at 100, the district court lacked the discretion to
abstain under the Pullman doctrine.

V.

Our analysis of Pullman abstention does not fully resolve
the matter, however. The district court also abstained from
deciding CNS’s claims under O’Shea v. Littleton, 414 U.S.

7
Indeed, our court’s own library ably publishes, for internal use only, a
daily news digest entitled “New and Noteworthy.” The CNS website is
the source for many of the included articles.
24 COURTHOUSE NEWS SERVICE V. PLANET

488 (1974). We must decide whether O’Shea provides an
independent basis for abstention. Under either de novo
review or the de novo component of the modified abuse of
discretion standard applicable in most abstention cases, see
Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939
(9th Cir. 2002), we conclude that O’Shea abstention was also
improper.

A.

In O’Shea, nineteen plaintiffs challenged comprehensive
racial discrimination in the administration of justice in
Alexander County, Illinois. They alleged, among other
things, that the county magistrate and judge had set higher
bail for and imposed harsher sentences on black defendants
than white defendants. Id. at 492. Relying on its then-recent
decision in Younger v. Harris, 401 U.S. 37 (1971), the
Supreme Court explained that principles of comity and
federalism “preclude[d] equitable intervention” because the
plaintiffs sought “an injunction aimed at controlling or
preventing the occurrence of specific events that might take
place in the course of future state criminal trials.” O’Shea,
414 U.S. at 499–500. Younger had established a firm rule
against enjoining ongoing state criminal proceedings, absent
exceptional circumstances, and the plaintiffs in O’Shea
simply sought to “indirectly accomplish the [same] kind of
interference” through an “ongoing federal audit” of state
proceedings. Id. at 500.

The Supreme Court later relied on the principles of
O’Shea to hold that an injunction requiring the Philadelphia
police department to draft comprehensive internal procedures
to address civilian complaints was beyond the “scope of
federal equity power.” See Rizzo v. Goode, 423 U.S. 362,
 COURTHOUSE NEWS SERVICE V. PLANET 25

378–80 (1976). Younger has also been extended well beyond
criminal proceedings. See, e.g., Gilbertson v. Albright,
381 F.3d 965, 968–69 (9th Cir. 2004) (en banc) (holding that
Younger principles apply to an action for damages that relates
to a pending state proceeding); Wiener v. Cnty. of San Diego,
23 F.3d 263, 266 (9th Cir. 1994) (explaining that Younger
abstention is required when the federal plaintiff has an
adequate opportunity to litigate federal constitutional claims
in a pending state proceeding involving important state
interests); see also 17A MOORE’S FEDERAL PRACTICE
§ 122.05[2][d] (3d ed. 2012) (describing the extension of
Younger).

We have come to view O’Shea as standing for the more
general proposition that “[w]e should be very reluctant to
grant relief that would entail heavy federal interference in
such sensitive state activities as administration of the judicial
system.” L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 703 (9th
Cir. 1992). O’Shea compels abstention where the plaintiff
seeks an “ongoing federal audit” of the state judiciary,
whether in criminal proceedings or in other respects. E.T. v.
Cantil-Sakauye, 682 F.3d 1121, 1124 (9th Cir. 2011) (per
curiam), cert. denied, 133 S. Ct. 476 (2012); see also
Kaufman v. Kaye, 466 F.3d 83, 86 (2d Cir. 2006) (holding
that abstention was required where the relief sought would be
overly “intrusive in the administration of the New York court
system”).

In Los Angeles County Bar Ass’n, the plaintiff sought a
declaratory judgment that the California statute providing for
238 superior court judgeships for Los Angeles County
violated the state and federal constitutions by causing major
delays in the resolution of civil cases. L.A. Cnty. Bar Ass’n,
979 F.2d at 700. We acknowledged that a declaration that
26 COURTHOUSE NEWS SERVICE V. PLANET

there were too few judicial positions on the court to meet
minimum constitutional requirements would prompt the
California legislature to authorize new judgeships, which the
governor would then have a legal duty to fill. See id. at 701.
We declined to abstain under O’Shea. We reasoned that a
simple declaration of the minimum number of judgeships
needed to satisfy the requirements of due process would
provide a clear, “useful” answer and would conclusively
resolve the discrete legal dispute between the parties, even
though it would “inevitably require restructuring” of the
superior court. Id. at 703–04.

In E.T., by contrast, the plaintiffs alleged that the
caseloads of court-appointed attorneys representing a putative
class of roughly 5,100 foster children in dependency court
prevented them from providing constitutionally adequate
representation. E.T., 682 F.3d at 1122–23. They sought,
among other forms of relief, an injunction requiring the
defendants to “provide the additional resources required to
comply with the Judicial Council of California and the
National Association of Counsel for Children’s recommended
caseloads for each court-appointed attorney.” Id. at 1123.
We affirmed the district court’s decision to abstain under
O’Shea, finding that the plaintiffs were seeking an “ongoing
federal audit” of the dependency court for Sacramento
County. Id. at 1124. We reasoned that, because the
plaintiffs’ requested relief concerned the adequacy of
representation, “potential remediation might involve
examination of the administration of a substantial number of
individual cases.” Id. We distinguished Los Angeles County
Bar Ass’n on the ground that it involved “average court
delays” and violations of the right to a speedy trial that the
plaintiffs alleged would be “solved by a simple increase in the
number of judges.” Id.
 COURTHOUSE NEWS SERVICE V. PLANET 27

Read in tandem, these cases suggest that O’Shea
abstention is inappropriate where the requested relief may be
achieved without an ongoing intrusion into the state’s
administration of justice, but is appropriate where the relief
sought would require the federal court to monitor the
substance of individual cases on an ongoing basis to
administer its judgment.

B.

CNS seeks preliminary and permanent injunctive relief
“prohibiting” Planet from “continuing his policies resulting
in delayed access to new unlimited jurisdiction civil
complaints and denying Courthouse News timely access to
new civil unlimited jurisdiction complaints on the same day
they are filed.” It also seeks a declaratory judgment that
Planet’s “policies that knowingly affect delays in access and
a denial of timely, same-day access to new civil unlimited
complaints” violate the U.S. Constitution, the federal
common law, and the California Rules of Court.

The district court erred by finding that this requested
relief would “impose an ongoing federal audit” of the
Ventura County Superior Court. E.T., 682 F.3d at 1124
(internal quotation marks omitted). The remedy that CNS
seeks is more akin to the bright-line finding that we approved
in Los Angeles County Bar Ass’n than the ongoing
monitoring of the substance of state proceedings that we
rejected in E.T. To determine whether the Ventura County
Superior Court is making complaints available on the day
they are filed, a federal court would not need to engage in the
sort of intensive, context-specific legal inquiry that would be
necessary to determine whether counsel’s performance was
constitutionally adequate. See id. There is little risk that the
28 COURTHOUSE NEWS SERVICE V. PLANET

federal courts would need to “examin[e] the administration of
a substantial number of individual cases” to provide the
requested relief. Id. at 1124; see also Tarter v. Hury,
646 F.2d 1010, 1013 (5th Cir. 1981) (holding that an
injunction against excessive bail was barred by O’Shea, but
that an injunction requiring clerks to file and docket all pro se
motions was a “simple, nondiscretionary procedural
safeguard” that would not be excessively intrusive).

The Ventura County Superior Court has available a
variety of simple measures to comply with an injunction
granting CNS all or part of the relief requested, should CNS
prevail on the merits of its claims. For instance, the court
could give reporters a key to a room where new complaints
are placed in boxes for review before being processed, as
does the Los Angeles Division of the U.S. District Court for
the Central District of California. It could adopt the practice
of the New York County Supreme Court in Manhattan and
place paper versions of new complaints in a secure area
behind the counter where reporters are free to review them on
the day of filing. Or it could follow the Santa Monica branch
of the Superior Court for Los Angeles County and permit
reporters to view the cover page of all newly filed complaints
each afternoon and request the full text of any that seem
newsworthy. To permit same-day access, the Ventura County
Superior Court may not need to do anything more than allow
a credentialed reporter—the same reporter who has been
regularly visiting the courthouse for the past twelve years—to
go behind the counter and pick up a stack of papers that
already exists. The federal courts would not need to
“examin[e] the administration of a substantial number of
individual cases” to assess whether the Ventura County
Superior Court is adopting any of these methods. E.T.,
682 F.3d at 1124. It is therefore within the district court’s
 COURTHOUSE NEWS SERVICE V. PLANET 29

sound discretion to fashion relief that would protect First
Amendment rights but would not require an “ongoing federal
audit” of the Ventura County Superior Court. Id. The district
court may also engage in fact-finding to understand the
Ventura County Superior Court’s resource limitations and
take them into account in crafting appropriate relief.

Planet’s focus on CNS’s mention of “appropriate case-
by-case adjudication” in its prayer for relief is misplaced.
This is not CNS’s requested relief, but rather is a reference to
the judicial findings of fact already required by the California
Rules of Court to permit a party to file a complaint under
seal. Cal. R. Ct. 2.550(d), 2.551. This construction of the
prayer for relief is consistent with CNS’s motion for a
preliminary injunction that would direct Planet “to provide
[CNS] with access to new complaints no later than the end of
the day on which they are filed, except in those instances
where the filing party is seeking a TRO or other immediate
relief or has properly filed the pleading under seal.” In other
words, CNS seeks relief requiring the Ventura County
Superior Court to make unlimited civil complaints available
the day they are filed, except where a process already exists
to consider case-specific factors that may justify withholding
a complaint.8

8
Planet’s assertion that CNS seeks to create a “new hearing system” is
therefore incorrect. CNS does argue that judges of the Ventura County
Superior Court must conduct case-by-case adjudication whenever the
court seeks to seal records, and that this adjudication must be consistent
with First Amendment standards. But California law already so provides,
see Cal. R. Ct. 2.551(a) (“A record must not be filed under seal without a
court order.”); Cal. R. Ct. 2.550(d) (setting forth express factual findings
required to seal court records), and these California rules must, of course,
be applied in a manner consistent with the federal Constitution, cf. NBC
Subsidiary (KNBC-TV) Inc. v. Superior Court, 980 P.2d 337, 361 (Cal.
30 COURTHOUSE NEWS SERVICE V. PLANET

Moreover, that some additional litigation may later arise
to enforce an injunction does not itself justify abstaining from
deciding a constitutional claim. Any plaintiff who obtains
equitable relief under 42 U.S.C. § 1983 enforcing his
constitutional rights against a state official may need to return
to court to ensure compliance with the judgment. See, e.g.,
Gluth v. Kangas, 951 F.2d 1504 (9th Cir. 1991) (upholding
procedures established by the district court to ensure
compliance with an injunction); cf. Brown v. Plata, 131 S. Ct.
1910, 1946 (2011) (“A court that invokes equity’s power to
remedy a constitutional violation by an injunction mandating
systemic changes to an institution has the continuing duty and
responsibility to assess the efficacy and consequences of its
order.”). Accepting Planet’s view that O’Shea applies “when
litigants seek federal court injunctions to reform the
institutions of state government” would justify abstention as
a matter of course in almost any civil rights action under
§ 1983. Mindful that the federal courts have a “virtually
unflagging obligation” to exercise our jurisdiction, we decline
to adopt this position. Colo. River Water Conservation Dist.
v. United States, 424 U.S. 800, 817 (1976); see also
Gilbertson, 381 F.3d at 969 n.2 (“[A]lthough there are limited
circumstances in which . . . abstention by federal courts is
appropriate, those circumstances are carefully defined and
remain the exception, not the rule.” (internal quotation marks
omitted)). We also trust that the Ventura County Superior
Court would comply with any federal injunction requiring it
to make unlimited civil complaints available within a
specified time period, so further proceedings to enforce an
injunction would be unlikely.

1999) (holding that a provision of state law governing the closure of court
proceedings must be “interpreted in a manner compatible” with the First
Amendment right of access).
 COURTHOUSE NEWS SERVICE V. PLANET 31

We conclude that the requirements of the O’Shea doctrine
are not satisfied. An injunction requiring the Ventura County
Superior Court to provide same-day access to filed unlimited
civil complaints poses little risk of an “ongoing federal audit”
or “a major continuing intrusion of the equitable power of the
federal courts into the daily conduct of state . . . proceedings.”
O’Shea, 414 U.S. at 500, 502. Under either de novo review
or the de novo component of the modified abuse of discretion
standard applicable in abstention cases, the district court erred
by abstaining under O’Shea.

VI.

There may be limitations on the public’s right of access
to judicial proceedings, and mandating same-day viewing of
unlimited civil complaints may be one of them.9 We take no
position on the ultimate merits of CNS’s claims, which the
district court has yet to address in the first instance. But those
claims raise novel and important First Amendment questions
that the federal courts ought to decide. We decline to leave
CNS and those who rely on its reporting twisting in the wind
while the state courts address a different question
entirely—the interpretation of a state law that itself
recognizes the importance of public access to judicial
proceedings. We reverse the judgment below and remand so
that the First Amendment issues presented by this case may

9
For instance, the right of access may be overcome by an “overriding
[governmental] interest based on findings that closure is essential to
preserve higher values.” Leigh, 677 F.3d at 898 (quoting Press-Enterprise
II, 478 U.S. at 9). The delay in making the complaints available may also
be analogous to a permissible “reasonable restriction[] on the time, place,
or manner of protected speech.” Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989).
32 COURTHOUSE NEWS SERVICE V. PLANET

be adjudicated on the merits in federal court, where they
belong.

REVERSED AND REMANDED.