County Sec. Agency v. Ohio Dept. of Commerce

• Decision Date: 09 July 2002
• Docket Number: No. 00-3620.,00-3620.
• Citation: 296 F.3d 477
• Parties: COUNTY SECURITY AGENCY, et al., Plaintiffs-Appellees, v. The OHIO DEPARTMENT OF COMMERCE, Defendant-Appellee, v. Michael J. Betzold, Intervenor-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

296 F.3d 477

COUNTY SECURITY AGENCY, et al., Plaintiffs-Appellees, v. The OHIO DEPARTMENT OF COMMERCE, Defendant-Appellee, v. Michael J. Betzold, Intervenor-Appellant.

No. 00-3620.

United States Court of Appeals, Sixth Circuit.

Argued March 19, 2002.

Decided and Filed July 9, 2002.

COPYRIGHT MATERIAL OMITTED

Daniel A. Richards, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, Adam P. Hall (argued and briefed), Matthew C. Blickensderfer (briefed), Thomas D. Amrine (briefed), Frost, Brown & Todd, Cincinnati, Ohio, for Appellees.

Jeffrey P. Hastings, Kenneth F. Affeldt, Office of Atty. General, Cleveland, OH, for Ohio Dept. of Commerce.

Robert Weinberg (briefed), Philip Hostak (argued and briefed), Bredhoff & Kaiser, Washington, DC, Mark A. Rock, Timothy J. Gallagher, Schwarzwald, Rock & McNair, Cleveland, OH, for Michael J. Betzold.

Before: SILER and GILMAN, Circuit Judges; HEYBURN, Chief District Judge.^*

OPINION

GILMAN, Circuit Judge.

Michael J. Betzold, a freelance journalist, appeals a temporary restraining order (TRO) and superseding preliminary injunction preventing him from disclosing information contained in the registration records of private security guards working at the site of an ongoing labor dispute. Betzold received these records after requesting them from the Ohio Department of Commerce (ODC), although the ODC now takes the position that only law enforcement agencies are entitled to such information under Ohio law. The district court, Betzold argues, issued the TRO and preliminary injunction in violation of Rule 65 of the Federal Rules of Civil Procedure. Betzold also claims that the preliminary injunction should not have issued because it is a prior restraint of speech, thus violating his rights under the First Amendment. For the reasons set forth below, we REVERSE the judgment of the district court, DISSOLVE the injunction against Betzold and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

This case arises from a labor dispute at AK Steel Corporation's Mansfield, Ohio facility. AK Steel locked out its unionized workforce in September of 1999, and hired County Security Agency, Inc. (CSA), an Ohio corporation, to provide security in the often-violent dispute. Specific incidents of violence have included the placing of pipe bombs on AK Steel's premises, slashed tires, bricks thrown through windows, pigs' heads placed on managers' property, and security guards beaten as they escorted replacement workers to the facility.

Under Ohio law, all security guard companies operating in the state must obtain registration applications from their guard employees and promptly file these documents with the ODC. Ohio Rev.Code § 4749.06(A), (C). A Mansfield ordinance in effect prior to September of 1999 required security guard employees to file copies of their registration applications with the Mansfield police department. Registration applications contain the security guards' names, social security numbers, home addresses, home telephone numbers, dates of birth, fingerprints, and photographs. The district court declared the ordinance unconstitutional in January of 2000, and permanently enjoined Mansfield from enforcing it. Among the district court's grounds for finding the ordinance unconstitutional was that it violated the security guards' constitutionally protected right of privacy.

Following the district court's decision on this issue, the local affiliate of the United Steelworkers of America (the Union) hired Betzold and two others as freelance journalists to investigate and write a report that could form the basis for a published article about the companies providing security guards and hiring replacement workers in labor disputes. Betzold then telephoned the ODC, which is required by law to perform required background checks and maintain records on each licensed and registered security company and guard. Ohio Rev.Code § 4749.03.

Upon being informed by the ODC that the applications of security guard companies doing business in Ohio were public records available for public inspection, Betzold submitted a written request to the ODC on February 10, 2000 to examine any public information from the registration records of CSA. The ODC then faxed Betzold documents that contained the names of the security guards, as well as their application dates, dates of hire, registration status, and whether they came from out of state. Notably, these documents did not contain the security guards' social security numbers, home addresses, telephone numbers, dates of birth, fingerprints, or photographs.

From the information he received, Betzold determined that CSA hired most of its guards from outside of Ohio and that the ODC had not expeditiously carried out the required background checks on the guards. Betzold considered this information to be "of interest to the public in Mansfield and in Ohio." He asserted, on the other hand, that he did not intend to publish the security guards' names, because there would have been "no news value" in doing so. With the information he obtained from the ODC, Betzold began to prepare an article for publication that focused on the backgrounds of the security guards and the impact that the security companies have on the communities in which they operate.

On February 23, 2000 — one week after the ODC honored Betzold's request — CSA and AK Steel (the plaintiffs) filed suit against the ODC pursuant to 42 U.S.C. § 1983, alleging that the divulging of information regarding the private security guards would violate the plaintiffs' constitutional rights. They sought an order (1) declaring that the security guards "have a constitutionally protected privacy interest in preventing the public release of registration applications which contain their name, social security number, home address, home telephone number, date of birth, fingerprints and photograph," and (2) enjoining the ODC from "allowing inspection of, or providing copies of," the registration applications containing such information with regard to any past or present employees of CSA who have worked at AK Steel's Mansfield facility. The plaintiffs also filed a motion for a preliminary injunction against the ODC. Both the complaint and motion for a preliminary injunction named the ODC as the sole defendant. Neither the summons, the complaint, the motion for a preliminary injunction, nor any supporting document mentioned Betzold, and he was not served with process.

Approximately one week later, on March 2, 2000, the plaintiffs filed a motion seeking a TRO to prevent the ODC and Betzold from disclosing the information contained in the security guards' registration applications. The plaintiffs asserted that they took this action because they had just learned that the ODC had mistakenly released the information to Betzold, and they suspected that Betzold would turn it over to the Union. They further feared that the Union would use the information to harass and intimidate the security guards working at the AK Steel facility during the lockout.

Without notifying Betzold, or requiring the plaintiffs to do so, the district court held an in-chambers conference with counsel for the plaintiffs and the ODC on the following day. The ODC did not contest the issuance of the TRO, and no effort was made to contact Betzold during the proceeding. That afternoon, the district court issued the TRO. It provided, among other things, that "Michael Betzold and all other persons who have received the names and information concerning the security guards from the Department of Commerce are enjoined from disclosing such names and other information to anyone else."

Betzold received a copy of the TRO on March 4, 2000. Because he "personally did not want to continue when I had an injunction issued against me," Betzold stopped working on the article. On March 22, 2000, the district court issued a "Notice of Preliminary Injunction Hearing" to be held on April 17, 2000, which was sent to counsel for the plaintiffs and the ODC, but again not to Betzold. Two days later, Betzold moved to intervene in the lawsuit that had spawned the TRO. Betzold states in his motion to intervene as of right that he was seeking to challenge the issuance of the TRO on the grounds that "any injunctive relief that issues or has issued against [him] is outside of the Court's authority under Rule 65(d) of the Federal Rules of Civil Procedure," and "this Court does not have personal jurisdiction over [him]." In the alternative, Betzold also argued that even if the court later decided that it did have jurisdiction over him, the ODC's release of the documents was lawful. Although Betzold's motion to intervene states that he intended to contest any past or future injunctive relief against him on these grounds, the motion itself did not make these arguments. It was instead concerned with establishing the requirements for intervention under Rule 24 of the Federal Rules of Civil Procedure.

On April 10, 2000, the district court signed an order granting Betzold's motion to intervene as of right. Without notice to Betzold and without holding a hearing, the district court also issued a "Stipulated Preliminary Injunction" (SPI) signed by counsel for the plaintiffs and the ODC the following day. Betzold's motion to intervene was granted on April 12, 2000, the same day that the SPI was entered of record. The SPI enjoined the ODC and Betzold from releasing not only the names of the guards, but also any "other information" from the registration applications, noting that "[n]either the Department of Commerce, nor its counsel, are willing to provide voluntary written assurance to Plaintiffs that additional information will not be released before the Court's final determination of Plaintiffs' claim." The district court found that the ODC's disclosures to Betzold, coupled with its failure to insure against further disclosures (which might include the guards'...