Fisher v. King, 99-6837

• Decision Date: 28 September 2000
• Docket Number: No. 99-6837,99-6837
• Citation: 232 F.3d 391
• Parties: (4th Cir. 2000) HERBERT G. FISHER, Plaintiff-Appellant, v. CHARLES E. KING; CONRAD SPANGLER, Director, Division of Mineral Mining, Defendants-Appellees. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 391

232 F.3d 391 (4th Cir. 2000)

HERBERT G. FISHER, Plaintiff-Appellant, v. CHARLES E. KING; CONRAD SPANGLER, Director, Division of Mineral Mining, Defendants-Appellees.

No. 99-6837.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: September 28, 2000.

Decided: November 14, 2000.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge. (CA-98-754-7)

[Copyrighted Material Omitted] COUNSEL ARGUED: Wendy Michelle Marantz, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Edward Meade Macon, Senior Assistant Attorney General, Richmond, Virginia, for Appellee Spangler; Jeff Wayne Rosen, ADLER, ROSEN & PETERS, P.C., Virginia Beach, Virginia, for Appellee King. ON BRIEF: Steven H. Goldblatt, Director, Audrey I. Benison, Student Counsel, Thomas Curley, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Mark L. Earley, Attorney General, Judith Williams Jagdmann, Deputy Attorney General, Gregory E. Lucyk, Senior Assistant Attorney General, Richmond, Virginia, for Appellee Spangler; Lisa Ehrich, ADLER, ROSEN & PETERS, P.C., Virginia Beach, Virginia, for Appellee King.

Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Hamilton wrote the opinion, in which Judge Luttig and Judge King joined.

OPINION

HAMILTON, Senior Circuit Judge:

On January 2, 1987, Herbert Garrison Fisher (Fisher), then a resident of Gloucester County, Virginia, called 911 and reported to an emergency dispatcher that his wife, Kathryn Ann Youngs Fisher (Mrs. Fisher), had fallen off a pier into the Ware River. See Fisher v. Commonwealth, 431 S.E.2d 886, 887 (Va. Ct. App. 1993). The pier was located near a cottage the couple rented as a residence. See id. Responding emergency personnel found Mrs. Fisher's lifeless body floating in the Ware River within an hour from the time Fisher had first placed the 911 call. See id.

Following a jury trial in Gloucester County Circuit Court, on May 10, 1991, Fisher was convicted of second degree murder of Mrs. Fisher and sentenced to a term of twenty years' imprisonment. The original tape recording of Fisher's 911 call was played in open court during the trial and entered into evidence as "Exhibit 61." A verbatim transcript of Fisher's 911 call was also entered into evidence. Fisher has a copy of this transcript.¹

On February 22, 1996, Fisher directed a written request under the Virginia Freedom of Information Act (VFOIA), see Va. Code Ann. § 2.1-342 (Michie Supp. 2000), to the Clerk of the Gloucester County Circuit Court, Charles King (King), requesting that King give him physical possession of the original tape recording of his 911 call known as Exhibit 61. Of relevance here, the VFOIA provides that, except as otherwise specifically provided by law,"all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records." See id. § 2.1-342(A).

In May 1997, King denied Fisher's VFOIA request on the basis that a recent amendment to the VFOIA, see Va. Code Ann. § 2.1342(D) (Michie 1997), specifically denied rights under the VFOIA to all persons incarcerated in Virginia.² King relied upon the VFOIA's Prisoner Exclusion Provision to deny Fisher's VFOIA request, even though the provision was not effective until July 1, 1997. Notably, however, King continues to rely upon the VFOIA's Prisoner Exclusion Provision to deny Fisher's VFOIA request until this day.

On December 11, 1998, Fisher, proceeding pro se , filed this § 1983 action against King in his individual and official capacities, see 42 U.S.C. § 1983, in the United States District Court for the Western District of Virginia. Fisher alleged violations of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. See U.S. Const. amends. I & XIV, § 1. He sought both declaratory and injunctive relief. Specifically, Fisher sought a declaration that the VFOIA's Prisoner Exclusion Provision is unconstitutional and an injunction directing King to "release" to his (Fisher's) designated agent the original tape recording of his 911 call for copying and inspection.³ (J.A. 10).

King filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. See Fed. R. Civ. P. 12(b)(1), (b)(6). King argued: (1) the district court should decline subject matter jurisdiction under the Burford abstention doctrine, see Burford v. Sun Oil Co., 319 U.S. 315 (1943); and (2) Fisher did not suffer a constitutional violation.

The district court converted King's dismissal motion to one for summary judgment because the district court considered materials outside the pleadings. See Fed. R. Civ. P. 12(b), 56. The district court rejected King's argument regarding Burford abstention, but granted summary judgment in favor of King on the merits. This timely appeal followed.

On appeal, Fisher contends that, as applied to him after its effective date, the VFOIA's Prisoner Exclusion Provision violates the First Amendment. He also contends the VFOIA's Prisoner Exclusion Provision is facially unconstitutional.⁴ Finally, Fisher contends that King's continued denial of his VFOIA request violates the Equal Protection Clause of the Fourteenth Amendment.

We affirm on the following bases: (1) Fisher, as a member of the general public, does not have a First Amendment right of physical access to the original tape recording of his 911 call, and therefore, his "as-applied" challenge under the First Amendment fails; (2) the VFOIA is an access statute, and therefore, Fisher cannot maintain a facial overbreadth challenge under the First Amendment; and (3) Fisher, as a member of the general public, does not have a First Amendment right of physical access to the original tape recording of his 911 call, nor has he shown that King granted physical access to the original tape recording of his 911 call to any other person, and therefore, Fisher cannot prevail on his equal protection claim.

I.

As a threshold matter, King continues to argue that the district court should have declined subject matter jurisdiction under the Burford abstention doctrine.

We conclude the Burford abstention doctrine does not require dismissal of Fisher's § 1983 action. In Burford v. Sun Oil Co., 319 U.S. 315 (1943), the Supreme Court held that although a federal district court sitting in equity possesses subject matter jurisdiction over a civil action, it may, in its sound discretion, refuse to exercise such jurisdiction in certain circumstances if abstention is necessary to show "proper regard for the rightful independence of state governments in carrying out their domestic policy." Id. at 318 (internal quotation marks omitted). Accordingly, "abstention is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem." Belloti v. Baird, 428 U.S. 132, 146-47 (1976) (internal quotation marks omitted).

Here, Burford abstention is inappropriate. The VFOIA's Prisoner Exclusion Provision is not susceptible to a limiting construction avoiding Fisher's constitutional challenges. The provision is a straightforward blanket exclusion. Moreover, the provision is not affected for purposes of Fisher's § 1983 action by its attendant savings clause for constitutionally protected rights because the language of the savings clause is repugnant to the previous exclusionary language. See Looney v. Commonwealth, 133 S.E. 753, 755 (Va. 1926) ("It is well settled that saving clauses which are inconsistent with the body of an act are rejected and disregarded as ineffective and void."); see also 2A Norman J. Singer, Sutherland on Statutory Construction § 47:12 (6th ed. 2000). In sum, the district court correctly determined that abstention under Burford was not appropriate.

II.

We next address Fisher's as-applied challenge under the First Amendment to the VFOIA's Prisoner Exclusion Provision.⁵

In relevant part, the First Amendment provides that"Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. This prohibition is made applicable to the States by the Fourteenth Amendment. See Edwards v. City of Goldsboro, 178 F.3d 231, 245 n.10 (4th Cir. 1999). Fisher contends this prohibition guarantees him, as a member of the general public, physical access to the original tape recording of his 911 call that was entered into evidence during his two criminal trials.⁶ Therefore, Fisher contends, the First Amendment compels King to release the tape to his designated agent for copying and inspection. According to Fisher, the VFOIA's Prisoner Exclusion Provision unconstitutionally bars such release.

We begin our analysis of Fisher's as-applied challenge by acknowledging the general proposition that the First Amendment provides the general public a right of access to criminal trials, including access to documents submitted in the course of such trials. See In re Time, Inc., 182 F.3d 270, 271 (4th Cir. 1999). The precise question presented by Fisher's as-applied challenge, however, is whether the First Amendment provides him, as a member of the general public, a right of physical access to an audio tape that was played in open court in a criminal trial, admitted into evidence, and for which he possesses a complete verbatim transcript.⁷

Under the Supreme Court's decision in Nixon v. Warner Communications, 435 U.S. 589 (1978), the answer to this question is no. Of relevance here, in Nixon, certain members of the press argued that the First Amendment's guarantee of freedom of the press required the District Court for...