Herald Co. v. McNeal

• Decision Date: 13 April 1977
• Docket Number: No. 76-1460,76-1460
• Citation: 553 F.2d 1125
• Parties: 2 Media L. Rep. 1730 The HERALD COMPANY, a New York Corporation, doing business in Missouri as Globe-Democrat Publishing Company, Appellant, v. Theodore D. McNEAL et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1125

553 F.2d 1125

2 Media L. Rep. 1730

The HERALD COMPANY, a New York Corporation, doing business in Missouri as Globe-Democrat Publishing Company, Appellant, v. Theodore D. McNEAL et al., Appellees.

No. 76-1460.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 12, 1977.

Decided April 13, 1977.

Lon Hocker, St. Louis, Mo., for appellant.

Kenneth C. Brostron, St. Louis, Mo., for appellee; Albert J. Stephan, Jr., St. Louis, Mo., on the brief.

John D. Ashcroft, Atty. Gen., and Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, Mo., filed brief for State of Mo. amicus curiae.

Before HEANEY and STEPHENSON, Circuit Judges, and STUART, District Judge. ^*

HEANEY, Circuit Judge.

The publisher of the Globe-Democrat brought this action seeking to enjoin the Commissioners of the Board of Police from denying access to arrest records and police reports. ¹ In Counts I and II, Globe claims that these records and reports should be available to their reporters pursuant to the "Sunshine" law, Mo.R.S. §§ 610.010 and 610.015 and other state statutes, Mo.R.S. §§ 109.180, 109.190 and 109.210 et seq. It also claims that the refusal to permit access to arrest records and police reports denies their property right in the news and impairs freedom of the press in violation of the Constitutions of Missouri and of the United States. In Count III, Globe claims that the Banks amendment to the "Sunshine" law, ² which closes or expunges arrest records under certain circumstances, impairs freedom of the press and is special legislation in violation of Mo.Const. art. III, § 40(30) as well as state and federal constitutional equal protection provisions. The District Court dismissed the action without prejudice by invocation of the abstention doctrine. ³ On appeal, the State of Missouri filed a brief as amicus curiae.

The Board of Police Commissioners has traditionally published, on a daily basis, a narrative summary of all significant crimes and arrests in the preceding twenty-four hours. This summary continues to be published and made available to reporters. During February, 1976, Globe sought access to arrest records and police reports which contained information in addition to that provided by the summary. This action was filed after the Board denied Globe's request. In response to the action, the Board initiated a new procedure and made a revised arrest register available to reporters. ⁴ It provides, however, that if no charge is filed within thirty days of the date of the arrest, the arrest register is closed as required by Mo.R.S. § 610.100. Police reports are still unavailable.

Two lawsuits seeking similar relief were pending in state courts at the time this action was brought. One is a virtually identical action filed by Globe in the Circuit Court of the County of St. Louis. The other is an action filed by the Pulitzer Publishing Company in the Circuit Court of the City of St. Louis. The Pulitzer action also seeks access to arrest records and police reports but does not challenge the constitutionality of the Banks amendment. The Globe action was removed from the trial calendar in August, 1976, to be rescheduled pending the outcome of this action. The Pulitzer action is still pending.

I. Abstention.

The District Court dismissed this action by invocation of the abstention doctrine giving as reasons the existence of a similar pending state action and the presence of issues of unsettled state law. We hold that the District Court properly abstained from deciding Counts I and II because the relevant state statutes may be construed by the state court in the pending Pulitzer case in a way that will avoid the federal constitutional issues raised. We also hold that the action should not have been dismissed because retention of jurisdiction is the appropriate course of action when a District Court abstains. Trial Lawyers Asso. v. N. J. Supreme Court, 409 U.S. 467, 469, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973). ⁵ Abstention was not proper, however, as to Count III since state court review of the state constitutional issue, which may make our decision of the federal constitutional issues unnecessary, is likely to be significantly delayed.

Abstention is the exception rather than the rule, Colorado River Water Cons Dist. v. United States, 424 U.S. 800, 812-813, 96 L.Ed.2d 1236, 1243-1244, 47 L.Ed.2d 483, 495 (1976), sanctioned only in narrowly limited "special circumstances" which justify the delay and expense to which the application of the doctrine inevitably gives rise. Kusper v. Pontikes, 414 U.S. 51, 54, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Lake Carriers' Asso. v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Abstention is appropriate, however, when a federal constitutional issue might be mooted or presented in a different posture by a state court determination of state law issues. Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976); Colorado River Water Cons. Dist. v. United States, supra. The Board and the State of Missouri argue that this action falls within this category of abstention since there are both state statutory and state constitutional questions which may be dispositive, thus avoiding the necessity of reaching the federal constitutional issues.

In Counts I and II, Globe contends that it is entitled to access to arrest records and police reports under the state "Sunshine" law and the state public records law. ⁶ The question of whether the state "Sunshine" law, Mo.R.S. §§ 610.010 and 610.015, when construed with certain other Missouri statutes pertaining to public records, Mo.R.S. §§ 109.180, 109.190 and 109.210 et seq., mandates access to arrest records and police reports, has never been considered by the state courts. Abstention is not automatically required whenever a federal court is faced with judicially unconstrued state laws. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Chicago v. Atchison, Topeka & Santa F. R. Co., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958); Doud v. Hodge, 350 U.S. 485, 76 S.Ct. 491, 100 L.Ed. 577 (1956); but is appropriate where the state laws are uncertain, and the uncertainty is such that a determination by the state court may obviate the need for deciding the federal constitutional question. Lake Carriers' Asso. v. MacMullan, supra 406 U.S. at 511, 92 S.Ct. 1749; Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Baggett v. Bullitt, 377 U.S. 360, 375-379, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). The relevant state statutory provisions here could reasonably be construed to require that arrest records and police reports be open to the public. ⁷ Since such a construction would avoid the necessity of reaching the constitutional issues, we conclude that the District Court was correct in abstaining with respect to the issues raised by Counts I and II of Globe's complaint. Boehning v. Indiana Employees Asso., 423 U.S. 6, 96 S.Ct. 168, 46 L.Ed.2d 148 (1975). Moreover, since exactly the same issues are raised in the Pulitzer case now pending in state court, there is "a substantial and immediate possibility of obviating petitioner's federal claim by a decision on state law grounds." Steffel v. Thompson, 415 U.S. 452, 475 n. 22, 94 S.Ct. 1209, 1224, 39 L.Ed.2d 505 (1974); Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971).

Whether abstention is appropriate with respect to the issues raised by Count III of Globe's complaint is a more difficult question. In that Count, Globe challenges the Banks amendment to the "Sunshine" law as special legislation in violation of Missouri Constitution, art. III § 40(30). The amendment is applicable only to cities or counties having a population of 500,000 or more. For this reason, Globe contends the amendment violates the special legislation provisions of the Missouri Constitution. No state court has yet considered whether the Banks amendment is special legislation under this provision.

The special legislation provision is unique to the Missouri Constitution and does not mirror a similar provision in the federal Constitution. ⁸ While abstention is usually required when the uncertain state constitutional provision is unique, Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Meridian v. Southern Bell Teleph. & Teleg. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959), we, nevertheless, believe that abstention is inappropriate here. State court review of the Banks amendment is likely to be significantly delayed because it was not challenged in the pending Pulitzer action. It was challenged in Globe's state court action, but the state court deferred consideration of the matter pending our determination in this case. We are concerned by the potential for delay because the underlying federal constitutional issue in Count III is that the Banks amendment impairs freedom of the press guaranteed by the First Amendment. Thus,

to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect.

Zwickler v. Koota, supra 389 U.S. at 252, 88 S.Ct. at 397-398.

Accordingly, while we agree that abstention was appropriate with respect to Counts I and II, it was not appropriate with respect to Count III. On remand, the District Court is directed to reinstate the cause of action and enter an abstention order postponing any decision of the federal constitutional issues raised in Counts I and II pending final state court determination of the issues of state law inherent in those counts. The District Court may await the decision of the state trial court in the Pulitzer case before proceeding to hear and determine Count III. If the state trial court...