386 F.3d 116 (2nd Cir. 2004), 02-6201, Huminski v. Corsones

Docket Nº:02-6201(L), 02-6150(XAP), 02-6199(CON), 03-6059(CON).
Citation:386 F.3d 116
Party Name:Scott HUMINSKI, Plaintiff-Appellant-Cross-Appellee, v. Hon. Nancy CORSONES, Hon. M. Patricia Zimmerman, Karen Predom, Defendants-Appellees-Cross-Appellants, Sheriff R.J. Elrick and Rutland County Sheriff's Department, Defendants-Appellees.
Case Date:October 07, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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386 F.3d 116 (2nd Cir. 2004)

Scott HUMINSKI, Plaintiff-Appellant-Cross-Appellee,


Hon. Nancy CORSONES, Hon. M. Patricia Zimmerman, Karen Predom, Defendants-Appellees-Cross-Appellants,

Sheriff R.J. Elrick and Rutland County Sheriff's Department, Defendants-Appellees.

Nos. 02-6201(L), 02-6150(XAP), 02-6199(CON), 03-6059(CON).

United States Court of Appeals, Second Circuit

October 7, 2004

Argued: Oct. 20, 2003

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Robert Corn-Revere, Davis Wright Tremaine, LLP (Ronald G. London, Robert B. Mahini, and Constance M. Pendleton, of counsel), Washington, DC, for Plaintiff-Appellant.

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Shannon A. Bertrand, Reiber, Kenlan, Schwiebert & Facey, P.C., Rutland, VT, for Defendants-Appellees-Cross-Appellants Hon. Nancy Corsones and Hon. M. Patricia Zimmerman.

Joseph L. Winn, Assistant Attorney General of the State of Vermont (William H. Sorrell, Attorney General of the State of Vermont), Montpelier, VT, for Defendant-Appellee-Cross-Appellant Karen Predom.

Pietro J. Lynn, Lynn & Associates, P.C., Burlington, VT, for Defendants-Appellees Sheriff R.J. Elrick and Rutland County Sheriff's Department.

J. Joshua Wheeler (Robert M. O'Neil, of counsel), Charlottesville, VA, for Amicus Curiae The Thomas Jefferson Center for the Protection of Free Expression.

Before: McLAUGHLIN, CABRANES, and SACK, Circuit Judges.

SACK, Circuit Judge.

The plaintiff, Scott Huminski, is a long-time critic of the Vermont justice system who has sought to disseminate his message using a wide variety of means and media. In 1997, he became infuriated by what he thought to be his mistreatment by Vermont judges and prosecutors in the course of criminal proceedings against him. He therefore began to include angry denunciations of them in his public communications. He apparently thought himself to be a legitimate gadfly--a quintessential example of what Justice White once referred to as the "lonely pamphleteer."1 But Vermont judges and court personnel, against the background of then-recent acts of terrorism and violence, interpreted his behavior as a potential threat to personal safety, to court property, and to the orderly conduct of court business. Vermont officials therefore broadly prohibited Huminski's presence in and around certain state courthouses. Huminski complains that the restrictions are unconstitutional.

In traversing these waters, we must avoid foundering on either of opposing shoals. One is abridgement of the rights that the First Amendment, as applied to the States through the Fourteenth Amendment, confers on members of the public and press to attend and report on judicial proceedings and to speak out on public issues. The other is impairment of the ability of courts effectively and efficiently to protect their personnel, property, and processes. We endeavor to chart a course between them.

We conclude that Huminski had an individual First Amendment right of access to court proceedings even though he was not a party to and had no other official connection with them. The right created a presumption that he was entitled to access, but one that could be overcome if court officials reasonably decided that he might pose a threat to persons, property, or proceedings and if the restrictions on his access were reasonably tailored to meet the legitimate goals of the exclusion. We conclude, however, that this individual right was not well-settled at the time of the events at issue here and that the defendants are therefore entitled to qualified immunity with respect thereto.

We also conclude that although the Rutland courthouses and grounds are nonpublic forums, singling Huminski out for a prohibition against his ability to express himself on any subject in those locations violated his First Amendment right to express himself.

In addition, we decide that defendants Sheriff Elrick, acting in his official capacity, and the Rutland County Sheriff's Department

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are protected by sovereign immunity from Huminski's lawsuit insofar as it seeks retrospective relief. We conclude, finally, that both Judge Corsones and Judge Zimmerman are entitled to judicial immunity with respect to these events.


Because consideration of the issues before us requires a careful review of the record, we set forth the factual background, and the competing factual assertions of parties and witnesses, in unfortunate detail. The manner in which we are required to consider such conflicting assertions of fact differs from argument to argument on appeal, as we explain below.

At all relevant times, Huminski was a Vermont resident with an intense interest in the conduct of public officials involved in the state's justice system, in particular, members of the state judiciary and the office of the Vermont Attorney General. Huminski, acting as what he calls a "citizen reporter," disseminated his views by, among other things: becoming a source for national and local news organizations; posting signs at his residence and on his van parked in areas adjacent to public venues, such as the Vermont Statehouse and state courthouses; filing judicial conduct complaints; writing letters to public officials; and seeking public office. He based his views in part on his observations while attending state court sessions.

As of May 24, 1999, Huminski had sought to convey his views about the Vermont justice system at the Bennington District Court in Bennington, Vermont. He did so some thirty times by posting signs on his van parked there. He encountered no opposition to his doing so or to his presence at Bennington District Court proceedings.

Criminal Charges

Huminski's interaction with Vermont's justice system had begun in earnest in February 1997, when he was charged in the Bennington District Court with two counts of obstruction of justice. He was alleged to have sought to silence a possible witness against him in a civil case by threatening to have the witness jailed for shipping alcohol to minors if the witness testified. Huminski was further alleged to have manufactured evidence that the witness was in fact shipping alcohol to minors.

Judge Nancy Corsones, a defendant in the instant proceedings, was assigned to preside in Huminski's case. Huminski and the state reached a plea agreement, which Corsones initially approved. Subsequently, however, she granted the state's motion to vacate the plea agreement, allowing the state to reinstate the charges against him. See State v. Huminski, No. 203-2-97 Bncr, at 12 (Vt.Dist.Ct. Sept. 4, 1998).2 Soon thereafter, Huminski filed several complaints against Corsones regarding that decision with Vermont's Judicial Conduct Board. The complaints were ultimately dismissed as meritless.

Letters of Complaint

In September 1998, Huminski also sent letters of complaint to several Vermont public officials. Two of the letters are of particular interest. One, bitterly complaining about what Huminski thought to be his unfair treatment at the hands of the state, was sent to Cindy Maguire, Chief of the Criminal Division of the Vermont Attorney General's Office. In it, Huminski railed against, among other things, what he referred to as Vermont "policies in

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violation of due process," and crimes against himself and his wife. He warned that he would have to "take the law into [his] own hands and initiate activities that will get national media attention." An excerpt from the letter is set forth in the margin.3

Huminski sent the other pertinent letter to Vermont Attorney General William Sorrell, referring to similar contentions that he had previously made. In relevant part, he wrote:

Your willingness to pervert the law of the State of Vermont for the purpose of attacking one person is criminal. I believe the state will prevail in its goals[;] however, I believe my future activities will prevent the state from engaging in this behavior ever again. I require a response to my previous correspondences by noon today. Continued evidence of your corrupt behavior requires that I accelerate my activities.

Shortly thereafter, state law-enforcement officials investigated the correspondence. They decided that the letters were no more than Huminski's expressions of frustration with the Vermont justice system, and that they did not exhibit an intent or desire on the part of Huminski to inflict personal harm to anyone.

Corsones was neither the explicit subject nor a recipient of the letters. She nonetheless became aware of them soon after Huminski sent them. She interpreted the letters as a threat to her safety, that of her family, and that of the Vermont court system. More specifically, she thought that they contained a veiled bomb threat.4

Corsones's views were reinforced by fearful Bennington District Court staff members who similarly perceived the letters as threats and told Corsones so. The staff members also voiced their concern about Huminski's repeated presence at the courthouse in Bennington, particularly their fear that his van, often parked nearby, might contain a bomb.

According to Corsones, at about this time, Huminski telecopied at least four communications to her former law office,

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where her then-husband continued to practice law. The only such communications that we find in the record, however, are Huminski's complaints against her to the Judicial Conduct Board, which he asserts he sent to her to put her on notice of the complaints for purposes of according her due process.

Protest at Rutland District Court

More than six months later, on the morning of May 24, 1999, Huminski drove his van to the Rutland District Court...

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