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					Apr 19 13 02:03p        FAX                                                   408-828-3240                    p.2




          Civil Appeal No. 1-1038295


                              IN THE COURT OF APPEAL OF THE STATE OF CALIFC1
                                                                                      a:41i 44 "VOW . Skiti
                                                                                             X
                                           SIXTH APPELLATE DISTRICT                          A
                                                                                              AtnzI 3 202
                                                                                             MICHAEL J. YE1LY, Cr
                                        CHRISTOPHER SORENSON,     f5: 9y
                                                Petitioner,                                       DEPUTY
                                                     V.
                                THE SUPERIOR COURT OF MONTEREY COUNTY
                                               Respondent,

           THE MONTEREY COUNTY DISTRICT ATTORNEY'S ;OFFICE, THE MONTEREY
             COUNTY COUNSEL, THE MONTEREY COUNTY HERALD, THE SAUNAS
                                  CALIFORNIAN,
                                Real Parties In Interest.


                Monterey County Superior Court No. SS112361, M[14621. MI-I4654, MH4924.
                                  M1-14928, MH4934, MH5119, MH5129   .
                                           Hon. Mark E. Hood



                                     OPPOSITION TO MOTION TO DISMISS



                                         SHEPPARD, MULLIN, RICHTER &
                                                     HAMPTON LLP
                                      JAMES M. CHADWICK, CAL. BAR No. 157114
                                        DAVID E. SNYDER, CAL. BAR NO. 262001
                                                 379 LYTTON AVENUE 1
                                           PALO ALTO, CALIFORNIA 94301
                                                  TEL: 650-815-2600
                                                  FAx: 650-815-2601

                              Attorneys for Real Party In Interest Monterey' County Herald




           SMRH:408314684.4
                   CERTIFICATE OF INTERESTED ENTITIES

        Pursuant to Rule 8.208 of the California Rules of Court, counsel of

record hereby certify that the following entities have an ownership interest

of 10 percent or more in Real Party in Interest Monterey County Herald:

Media News Group, Inc.

Dated: April 19, 2013
                         SHEPPARD MULLIN RICHTER & HAMPTON LLP

                         By
                                       JAMES M. CHADWICK
                                          DAVID E. SNYDER
                              Attorneys for Real Party In Interest Monterey
                                             County Herald




SMRH:408314684.4                       -i-
                                  TABLE OF CONTENTS

                                                                                                     Page

Certificate of Interested Entities ..................................................................... i

I.       INTRODUCTION AND SUMMARY OF ARGUMENT ................ 1

II.      FACTUAL AND PROCEDURAL BACKGROUND ....................... 2

III.     THE ISSUE BEFORE THE COURT IS NOT MOOT AND
         THE COURT SHOULD NOT DISMISS THE PETITION,
         BECAUSE THE SETTLEMENT DOES NOT ADDRESS
         OR PROTECT THE PUBLIC’S RIGHT OF ACCESS .................... 3

IV.      EVEN IF THE ISSUE WERE MOOT, THE COURT
         SHOULD HEAR THE PETITION BECAUSE IT
         CONCERNS A MATTER OF SIGNIFICANT PUBLIC
         INTEREST ......................................................................................... 6

V.       CONCLUSION .................................................................................. 8




SMRH:408314684.4                                     -ii-
                                 TABLE OF AUTHORITIES

CASES                                                                                                Page(s)

Associated Press v. United States Dist. Court (9th Cir. 1983)
   705 F.2d 1143 .......................................................................................... 4

Boy Scouts of America Nat’l Found. v. Super. Ct. (2012)
   206 Cal.App.4th 428 ................................................................................ 6

Coldwell v. Board of Public Works (1921)
   187 Cal. 510 ............................................................................................. 4

Copley Press, Inc. v. Superior Court (1998)
  63 Cal.App.4th 367 .................................................................................. 2

County of Fresno v. Shelton (1998)
  66 Cal.App.4th 996 .................................................................................. 6

County of Placer v. Superior Court (2005)
  130 Cal.App.4th 807 ................................................................................ 4

Globe Newspaper Co. v. Superior Court (1982)
   457 U.S. 596 ............................................................................................ 2

Kirstowsky v. Superior Court (1956)
   143 Cal.App.2d 745 ................................................................................. 4

Marriage of LaMusga (2004)
  32 Cal.4th 1072 ........................................................................................ 6

In re Matter of Shortridge (1893)
    99 Cal. 526 ............................................................................................... 4

NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999)
  20 Cal.4th 1178 .................................................................................... 2, 4

Richmond Newspapers, Inc. v. Virginia (1980)
   448 U.S. 555 ............................................................................................ 2

Seattle Times v. United States Dist. Court (9th Cir. 1988)
   845 F.2d 1513 .......................................................................................... 4




SMRH:408314684.4                                       -iii-
                                 TABLE OF AUTHORITIES
                                       (continued)

STATUTES                                                                                             Page(s)

Welfare & Institutions Code
  §§ 5000 et seq. ......................................................................................... 7
  § 5328....................................................................................................... 4


OTHER AUTHORITIES

California Constitution, Article I, § 2, subd. (a)............................................ 2

California Conservatorship Practice, § 23.47 ................................................ 7




SMRH:408314684.4                                       -iv-
I.      INTRODUCTION AND SUMMARY OF ARGUMENT

        The Monterey County District Attorney (“District Attorney”)

requests the dismissal of the petition of Christopher Sorenson

(“Petitioner”), on the grounds that the District Attorney and Petitioner have

“settled or compromised the issue in the petition thus making the petition

moot.” (Motion to Dismiss Petition (“Motion”) at p. 2.) However, the

issue before this Court is not settled, as the District Attorney’s own

pleadings with this Court make plain. That issue is “the public’s right to

gain access to transcripts of jury trials,” as the District Attorney noted in its

Return to Petition for Writ of Mandate (“Return”). (Return at p. 1,

emphasis added.)1 The proposed settlement between the District Attorney

and Petitioner, which provides the transcripts to the District Attorney but

not to anyone else, does not resolve this issue.

        Indeed, the proposed settlement specifically thwarts the public’s

right of access by requiring that the Superior Court reverse its own order

releasing the transcripts and, instead, bar public access. The Court should

not permit this. The District Attorney cannot bargain away the

1
        The Herald hereby requests to join in the District Attorney’s Return,
or to have this opposition treated as its return to the petition. Because the
Return expressly asserted the public’s right of access and hence preserved
that issue for appeal, because the Herald’s resources are limited, and
because the Herald had no reason to believe that the District Attorney
would not continue to assert the public’s right of access, the Herald did not
previously file a return on its own behalf or join the District Attorney’s
Return.



SMRH:408314684.4                        -1-
constitutional rights of the public and of Real Party In Interest Monterey

County Herald (the “Herald”) to obtain the transcripts at issue.2

        In any event, even if the issue were moot, which it is not, the Court

can and should hear the merits because it involves an issue of significant

public interest that is likely to recur—the public’s constitutional right of

access to public proceedings that Monterey County Superior Court

evidently routinely seals in their entirety as a matter of policy.

        Dismissing the petition now is improper, as the question before the

Court is a live one. The Motion should be denied.

II.     FACTUAL AND PROCEDURAL BACKGROUND

        On May 2, 2012, Judge Mark E. Hood of the Monterey County

Superior Court ordered the release of the transcripts of two jury trials

involving Petitioner. (See Petition for Writ of Mandate (“Pet.”) Ex. J.)

The Order specified that “the People, the Defendant, The Herald, and The


2
       The Herald has standing to oppose the Motion to Dismiss as a Real
Party in Interest, as well as under the well-established rights under the First
Amendment and the California Constitution to assert a right of access to
court records. (See, e.g., Globe Newspaper Co. v. Superior Court (1982)
457 U.S. 596, 609, fn. 25 [“representatives of the press and general public
‘must be given an opportunity to be heard on the question of their
exclusion.’”]; Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555,
580; Cal. Const., art. I, § 2, subd. (a); NBC Subsidiary (KNBC-TV), Inc. v.
Superior Court (1999) 20 Cal.4th 1178, 1216-1218, and fn. 36 (NBC
Subsidiary); Copley Press, Inc. v. Superior Court (1998) 63 Cal.App.4th
367, 373 [“both the federal (U.S. Const., 1st Amend.) and the state (Cal.
Const., art. I, § 2, subd. (a)) Constitutions provide broad access rights to
judicial records in criminal and civil cases.”].)



SMRH:408314684.4                        -2-
Salinas Californian may order transcript copies of the trial.” (Id. at p. 3.) It

stayed the order for 15 days to allow for the filing of a writ petition. (Id.)

Petitioner filed his petition on May 16, 2012. The Court ordered a stay on

the Superior Court’s order “until further order of this court.” (See Docket.)

On December 4, 2012, the Court issued an order to show cause why a

peremptory writ should not issue as requested in the writ petition. (Id.)

The District Attorney filed its Return on January 11, 2013, and Petitioner

filed a Reply on February 19, 2013. (Id.)

        The Herald originally filed a request for the transcripts on February

8, 2012. (Pet. Ex. D.) The Herald briefed the issue extensively below.

(See Pet. Ex. F, pp. 57-83; Ex. J.) The Herald’s arguments in the Superior

Court largely tracked the arguments made by the District Attorney in his

Return—namely, that the strong presumption of openness of civil court

records provided by the First Amendment and the California Constitution

require that the transcripts of the jury trials here should be open to the

public, particularly because the trials themselves were open to the public.

III.    THE ISSUE BEFORE THE COURT IS NOT MOOT AND THE
        COURT SHOULD NOT DISMISS THE PETITION, BECAUSE
        THE SETTLEMENT DOES NOT ADDRESS OR PROTECT
        THE PUBLIC’S RIGHT OF ACCESS

        The District Attorney asserts that he and Petitioner have

“compromised or settled” the “underlying claim,” which the District

Attorney asserts “involv[es] the release to the People of the transcripts.”



SMRH:408314684.4                        -3-
(Mot. at p. 7, emphasis added.) This is incorrect, and it is not the way the

District Attorney presented the underlying claim, or the issue before the

Court, in his Return. There, the District Attorney asserted that the writ

proceeding “concerns . . . the public’s right to gain access to transcripts of

jury trials.” (Return at p. 1, emphasis added.) That right of public of

access of civil court proceedings is central in this proceeding, and it is not

only unresolved but is affirmatively thwarted by the proposed settlement.

        The public and the press have a right of access to pretrial

proceedings and court records under the First Amendment and California

law. (NBC Subsidiary, supra, 20 Cal.4th at pp. 1216-1218, and fn. 36;

Seattle Times v. United States Dist. Court (9th Cir. 1988) 845 F.2d 1513,

1515; Coldwell v. Board of Public Works (1921) 187 Cal. 510, 520-521; In

re Matter of Shortridge (1893) 99 Cal. 526, 530; County of Placer v.

Superior Court (2005) 130 Cal.App.4th 807, 814.) Civil proceedings, such

as those under the Lanterman Petris Short Act (“LPS Act”), Welfare &

Institutions Code section 5328, that are at issue here, are to be open unless

expressly provided otherwise. (Kirstowsky v. Superior Court (1956) 143

Cal.App.2d 745, 750.) Secrecy must be “strictly and inescapably

necessary” to protect a compelling government interest. (Associated Press

v. United States Dist. Court (9th Cir. 1983) 705 F.2d 1143, 1146.)

        As the Herald and the District Attorney showed below, and as the

District Attorney argued in its Return, nothing in the LPS Act overrides the


SMRH:408314684.4                        -4-
strong presumption of openness in civil proceedings, and thus LPS Act

proceedings are presumed to be open to the public.3 (Pet. Ex. F, pp. 57-83;

Ex. J [Herald papers]; Return pp. 13-21 [District Attorney argument].)

Thus, the transcripts of the two jury trials below are subject to the public’s

right of access under the First Amendment and California Constitution. As

the District Attorney acknowledged in its Return, any claim of right he has

to the transcript’s arises out of the public’s right. (See, e.g., Return at p. 3

(“The sittings of every court shall be public”); p. 4 (“No member of the

public could ever access records from the proceedings”). The District

Attorney now apparently seeks to revise his earlier position, claiming that

the issue is only “the release to the People [i.e., the District Attorney] of the

transcripts from the LPS jury trials,” and that the writ proceeding involved

Petitioner’s “attempt to preclude the People from obtaining copies of

transcripts.” (Mot. at 7, emphasis added.) However, this case has never

been only between the District Attorney and Petitioner. The Herald, along

with the Salinas Californian, sought the records from an early date. (Pet.

Ex. A [request for records by Californian on Dec. 21, 2011]; Ex. D

[Herald’s Petition to Examine Sealed Records].) Moreover, the Herald and

3
       As the District Attorney argued in detail in the Return, the language
in the LPS Act relied on by Petition as establishing secrecy in LPS Act
proceedings does not explicitly require such secrecy and thus does not
overcome the constitutional presumption of openness. (See Return at
pp. 13-32.)



SMRH:408314684.4                        -5-
Californian briefed the issue extensively before the Superior Court. (See

Pet. Ex. F, pp. 57-83; Ex. J.) Both newspapers are Real Parties in Interest.

Furthermore, and perhaps more fundamentally, the rights being asserted by

all proponents of access are the public’s constitutional rights—the very

rights that the District Attorney is supposed to be protecting and enforcing.

        The District Attorney cannot bargain away the public’s right of

access to the transcripts, which arises out of the First Amendment and

California law. Accordingly, the Motion should be denied.

IV.     EVEN IF THE ISSUE WERE MOOT, THE COURT SHOULD
        HEAR THE PETITION BECAUSE IT CONCERNS A
        MATTER OF SIGNIFICANT PUBLIC INTEREST

        The Court has discretion to retain an appeal despite the occurrence

of events that moot the issue—specifically where, as here, the case poses an

issue of broad public interest that is likely to recur. (Marriage of LaMusga

(2004) 32 Cal.4th 1072, 1086; Boy Scouts of America Nat’l Found. v.

Super. Ct. (2012) 206 Cal.App.4th 428, 433; County of Fresno v. Shelton

(1998) 66 Cal.App.4th 996, 1006-1008.) Thus, while the issue here is not

moot for the reasons explained above, the Court should retain the issue

because Monterey County’s apparent practice of automatically sealing all

transcripts of LPS Act proceedings contravenes the First Amendment and

California requirements of openness in civil proceedings and is likely to

result in the recurrent, improper closure of such proceedings or sealing of

transcripts.


SMRH:408314684.4                       -6-
        Access to court records is unquestionably an issue of significant

public interest, as it is a fundamental right under both the United States and

California Constitutions. Petitioner’s two conservatorship trials in

Monterey County Superior Court were open to the public. However, when

the Monterey County District Attorney and the Salinas Californian asked to

inspect the transcripts of these proceedings, Presiding Judge Roberts of the

Monterey County Superior Court issued an order denying the requests.4

The order explained the sealing of the records as follows: “[I]n this

jurisdiction,” all files associated with conservatorship proceedings—as well

as all hearings—are “deemed confidential.” (Order Regarding Transcript

Request, Case No. MH5129; MH4654, filed January 12, 2012.) The

authority cited was the Lanterman-Petris-Short Act (“LPS Act”), Welf. &

Inst. Code §§ 5000 et seq.5

        As the District Attorney and the Herald have shown in the court

below and before this Court, the sealing of the transcripts of open court


4
        Julia Reynolds, a reporter for the Monterey County Herald, later
filed a petition to unseal eight files from Sorenson’s mental health
proceedings. (See Pet. Ex. D.)
5
        The Order Regarding Transcript Request by Presiding Judge Roberts
also cited a CEB treatise, California Conservatorship Practice, § 23.47.
That treatise merely notes that “in at least one county”—presumably
Monterey—“the entire file is confidential.” However, the treatise also
describes widely varying practices from county to county, including several
counties were all hearings “are open to the public, unless good cause is
shown to close them on request.”



SMRH:408314684.4                       -7-
proceedings is contrary to the plain language of the LPS Act. Further, it

contravenes the First Amendment to the United States Constitution and

California law, which create a strong presumption of openness in court

proceedings. Any statutory exceptions to this presumption must be

narrowly construed. The LPS Act contains certain explicit statutory

exceptions, but none are applicable here.

        It appears that the Monterey County Superior Court is routinely

sealing, without any public notice and as a matter of course, all files

relating to LPS Act proceedings. If that is the case, doing so is contrary to

state and federal law mandating that civil proceeding be open to the public,

and is not warranted by the LPS Act. Moreover, it is plainly an ongoing

violation of the public’s Constitutional right of access and thus merits

attention by this Court, irrespective of any purported settlement by the

District Attorney and Petitioner.

V.      CONCLUSION

        For all of the above reasons, the Court should deny the Motion.

Dated: April 19, 2013
                       SHEPPARD MULLIN RICHTER & HAMPTON LLP

                      By
                                      JAMES M. CHADWICK
                                         DAVID E. SNYDER
                             Attorneys for Real Party In Interest Monterey
                                            County Herald




SMRH:408314684.4                       -8-
                   CERTIFICATE OF COMPLIANCE

        I certify that, pursuant to California Rule of Court 8.204(c), the

Opposition to Motion to Dismiss is proportionately spaced, has a typeface

of 13 points, and contains 2, 008 words, according to the counter of the

word processing program with which it was prepared.

Dated: April 19, 2013
                       SHEPPARD MULLIN RICHTER & HAMPTON LLP

                       By
                                       JAMES M. CHADWICK
                                          DAVID E. SNYDER
                              Attorneys for Real Party in Interest Monterey
                                             County Herald




SMRH:408314684.4                        -9-
                            PROOF OF SERVICE

         STATE OF CALIFORNIA, COUNTY OF SANTA CLARA

       At the time of service, I was over 18 years of age and not a party to
this action. I am employed in the County of Santa Clara, State of
California. My business address is 379 Lytton Avenue, Palo Alto, CA
94301-1479.

       On April 19, 2013, I served true copies of the following document(s)
described as OPPOSITION TO MOTION TO DISMISS on the
interested parties in this action as follows:

Honorable Mark E. Hood                      Annette Marie Cutino
Monterey County Superior Court              Office of the County Counsel
240 Church Street                           168 West Alisal Street, 3rd Floor
Salinas, CA 93901                           Salinas, CA 93901-2680

Donald E. Landis, Jr.                       Steven Dana Liner
Assistant Public Defender                   Liner Buck & Giordano
Monterey County Public                      130 Olmstead Way, Suite A
  Defender's Office                         Monterey, CA 93940
111 W. Alisal Street
Salinas, CA 93901

California Dept. of Mental Health           Office of the Attorney General
Division of Legal Services                  455 Golden Gate Avenue
1600 9th Street                             Suite 11000
Sacramento, CA 95814                        San Francisco, CA 94102

Glenn Pesenhofer
Deputy District Attorney
Monterey County
230 Church Street, Building 3
Salinas, CA 93901


        BY MAIL: I enclosed the document(s) in a sealed envelope or
package addressed to the persons at the addresses listed in the Service List
and placed the envelope for collection and mailing, following our ordinary
business practices. I am readily familiar with the firm's practice for
collecting and processing correspondence for mailing. On the same day
that the correspondence is placed for collection and mailing, it is deposited




SMRH:408314684.4
in the ordinary course of business with the United States Postal Service, in
a sealed envelope with postage fully prepaid.

       I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.

        Executed on April 19, 2013, at Palo Alto, California.




                                      Robin P. Regnier




SMRH:408314684.4

				
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