21 F.3d 1508 (10th Cir. 1994), 92-1363, Lanphere & Urbaniak v. State of Colo.

Docket Nº:92-1363.
Citation:21 F.3d 1508
Party Name:LANPHERE & URBANIAK, the Law Firm of, Gregory S. Lanphere, Joel E. Urbaniak, individually and as partners thereof; Frank Mutchler, as Director of Turning Point Drug and Alcohol Treatment Center, Plaintiffs-Appellants, v. COLORADO, STATE OF; Gale A. Norton, Attorney General for the State of Colorado, in her official capacity only; Roy Romer, Governo
Case Date:April 19, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
FREE EXCERPT

Page 1508

21 F.3d 1508 (10th Cir. 1994)

LANPHERE & URBANIAK, the Law Firm of, Gregory S. Lanphere,

Joel E. Urbaniak, individually and as partners thereof;

Frank Mutchler, as Director of Turning Point Drug and

Alcohol Treatment Center, Plaintiffs-Appellants,

v.

COLORADO, STATE OF; Gale A. Norton, Attorney General for

the State of Colorado, in her official capacity only; Roy

Romer, Governor for the State of Colorado, in his official

capacity only, Defendants-Appellees.

No. 92-1363.

United States Court of Appeals, Tenth Circuit

April 19, 1994

Rehearing Denied July 1, 1994.

Page 1509

[Copyrighted Material Omitted]

Page 1510

Michael W. Gross (Arthur M. Schwartz, of Arthur M. Schwartz, P.C., Denver, CO, with him on the briefs), of Arthur M. Schwartz, P.C., Denver, CO, for plaintiffs-appellants.

Mark Widmann Gerganoff (Gale A. Norton, Atty. Gen.; Raymond T. Slaughter, Chief Deputy Atty. Gen.; Timothy M. Tymkovich, Sol. Gen.; Maurice G. Knaizer, Deputy Atty. Gen.; Larry A. Williams, First Asst. Atty. Gen., Denver, CO, with him on the brief), Asst. Atty. Gen., Denver, CO, for defendants-appellees.

Before TACHA, SETH, and ALDISERT, [*] Circuit Judges.

TACHA, Circuit Judge.

Plaintiffs brought suit against the State of Colorado under 42 U.S.C. Sec. 1983 claiming a violation of their First and Fourteenth Amendment free speech rights and requesting injunctive relief. Plaintiffs' claims are the result of a Colorado state statute limiting public access to criminal justice and official action records containing individual names, addresses, and telephone numbers where access is sought for the purpose of directly soliciting business for pecuniary gain. The district court granted summary judgment for defendant. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.

I. Background

The facts relevant to this appeal are not in dispute. Plaintiffs Gregory S. Lanphere and Joel E. Urbaniak are partners in the law firm of Lanphere & Urbaniak in Colorado Springs, Colorado. The firm handles misdemeanor traffic cases and cases involving charges of driving under the influence of alcohol (DUI). Plaintiff Frank Mutchler is the director of the Turning Point Drug and Alcohol Treatment Center, also located in Colorado Springs. Prior to June 1992, plaintiffs obtained names and addresses of individuals facing prosecution for various traffic violations and DUI from criminal justice and official action records 1 for the purpose of engaging in direct mail solicitation and advertising.

On April 2, 1992, the Colorado legislature passed the following legislative provision:

24-72-305.5. Access to records--denial by custodian--use of records to obtain information for solicitation. Records of official

Page 1511

actions and criminal justice records and the names, addresses, telephone numbers, and other information in such records shall not be used by any person for the purpose of soliciting business for pecuniary gain. The official custodian shall deny any person access to records of official actions and criminal justice records unless such person signs a statement which affirms that such records shall not be used for the direct solicitation of business for pecuniary gain.

Colo.Rev.Stat. Sec. 24-72-305.5. Since the passage of this section, plaintiffs have been denied access to criminal justice and official action records (collectively referred to hereinafter as "criminal justice records"). They refuse to sign the statement required under Sec. 24-72-305.5 because they wish to use the names and addresses in such records to engage in direct mail advertising "for the purpose of soliciting business for pecuniary gain."

Plaintiffs brought suit against the State of Colorado in the United States District Court for the District of Colorado alleging a violation of their First and Fourteenth Amendment right to free speech. The district court granted summary judgment for defendant holding that there is no right of access to criminal justice records and that, even if the First Amendment is implicated, the statute at issue survives First Amendment review. Plaintiffs now appeal.

II. Plaintiffs' First Amendment Claim

We review a district court's grant of summary judgment de novo, employing the same standard employed by the district court. Adolph Coors Co. v. Brady, 944 F.2d 1543, 1546 (10th Cir.1991). "[S]ummary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Id. Because the essential facts are undisputed in this case, we face exclusively a question of law.

Plaintiffs assert that Sec. 24-72-305.5 is an impermissible limitation on their First Amendment free speech rights. They argue that, because access to records is conditioned upon whether the resulting speech is to be commercial in nature, the regulation is content-based and should be subject to review under a First Amendment framework. Under this framework, plaintiffs argue that Sec. 24-72-305.5 is unconstitutional.

The State of Colorado, on the other hand, contends that this is not a free speech case at all, but rather a simple access-to-records case. Under this framework, the First Amendment is not implicated. The state has wide discretion in determining access to government records such as those sought by plaintiffs here and, the State of Colorado argues, Sec. 24-72-305.5 is a proper exercise of that discretion. The case is not as clear-cut as either side urges.

A. Access to government records

Courts have historically recognized a common law right, though not an absolute right, of access to government records, including judicial records. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98, 98 S.Ct. 1306, 1311-12, 55 L.Ed.2d 570 (1978); United States v. Hickey, 767 F.2d 705, 708 (10th Cir.), cert. denied sub nom., Hopkinson v. United States, 474 U.S. 1022, 106 S.Ct. 576, 88 L.Ed.2d 559 (1985). This "right is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes." Id. However, in this case, the common law has been supplanted by the statutory scheme outlined in Colo.Rev.Stat. Secs. 24-72-301 through 24-72-308, which includes the limiting provision challenged by plaintiffs.

The question, then, is whether there is an overriding constitutional right of access to government records. The State of Colorado is correct in its assertion that the general answer to this question is that there is no constitutional right, and specifically no First Amendment right, of access to government records. See Houchins v. KQED, Inc., 438 U.S. 1, 9, 98 S.Ct. 2588, 2593, 57 L.Ed.2d 553 (1978) (pointing out that the Court "has never intimated a First Amendment guarantee of a right of access to all sources of information within government control"); Hickey, 767 F.2d at 709. This principle encompasses situations in which members of the general

Page 1512

public and the press seek access to criminal justice records. See Nixon, 435 U.S. at 609, 98 S.Ct. at 1317-18; Hickey, 767 F.2d at 709. Any reference in Supreme Court precedent to constitutional entitlement of the public to information held by the government "mean[s] no more than that the government cannot restrain communication of whatever information [is in fact acquired]." Houchins, 438 U.S. at 10, 98 S.Ct. at 2594. Houchins makes clear the reasoning behind this rule. "The Constitution ... establishes the contest, not its resolution. [A legislature] may provide a resolution ... through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American society." Id. at 14-15, 98 S.Ct. at 2596-97 (quoting Hon. Potter Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975)).

Plaintiffs suggest, however, that we derive a First Amendment right of access from another line of Supreme Court precedent. In several cases, the Court has held that in certain circumstances the First Amendment is implicated in relation to the Sixth Amendment right to a fair and public trial. See Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (finding a right of access to pre-trial criminal proceedings as conducted in California); Press-Enterprise v. Superior Court (Press-Enterprise I), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (finding a right of public access to a jury voir dire proceeding in a criminal trial); Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (finding a right of public access to a criminal trial); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (also involving public access to a criminal trial). Under this precedent, however, a First Amendment right of access inheres only in limited situations where "a tradition of accessibility implies the favorable judgment of experience[ ]," Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740 (internal quotations omitted), and where "public access plays a significant positive role in the functioning of the particular process in question." Id. To hold that these principles provide for access to any criminal justice record which happens to contain a defendant's address and/or phone number and which is sought for that reason alone would stretch them well beyond their current bounds. See Calder v. IRS, 890 F.2d 781 (5th Cir.1989) (holding that the First Amendment right of access to certain criminal proceedings does not extend to IRS records of its investigation of Al Capone sought by a university professor who wished to use the records in his research). We therefore decline to so hold.

The State of Colorado argues...

To continue reading

FREE SIGN UP