696 F.2d 796 (11th Cir. 1983), 81-7886, Newman v. Graddick

Docket Nº:81-7886.
Citation:696 F.2d 796
Party Name:N.H. NEWMAN, et al., Plaintiffs-Appellees, v. Charles GRADDICK, Attorney General, etc., et al., Defendants-Appellees, The Advertiser Company, Movant-Appellant. Gust BIGG, et al., Plaintiffs-Appellees, v. Mac Sim BUTLER, etc., et al., Defendants-Appellees, The Advertiser Company, Movant-Appellant.
Case Date:January 05, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 796

696 F.2d 796 (11th Cir. 1983)

N.H. NEWMAN, et al., Plaintiffs-Appellees,


Charles GRADDICK, Attorney General, etc., et al., Defendants-Appellees,

The Advertiser Company, Movant-Appellant.

Gust BIGG, et al., Plaintiffs-Appellees,


Mac Sim BUTLER, etc., et al., Defendants-Appellees,

The Advertiser Company, Movant-Appellant.

No. 81-7886.

United States Court of Appeals, Eleventh Circuit

January 5, 1983

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[Copyrighted Material Omitted]

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Rushton, Stakley, Johnston & Garrett, Dennis R. Bailey, Montgomery, Ala., for movant-appellant.

Wm. J. Samford, Legal Advisor, M.R. Nachman, Jr., Montgomery, Ala., for Governor James.

Ralph I. Knowles, Jr., Tuscaloosa, Ala., Alvin L. Bronstein, Washington, D.C., Richard D. Shinbaum, Montgomery, Ala., Radney, Radney & Barnes, W. Scears Barnes, Jr., Alexander City, Ala., for Worley James, Nat. Prison Projects, Joe Hopper et al.

Appeal from the United States District Court for the Middle District of Alabama.

Before RONEY and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.

RONEY, Circuit Judge:

The Advertiser Company, the publisher of two Alabama newspapers, appeals the district court's denial of its petitions to copy certain judicial records and to gain access to hearings in this class action concerning unconstitutional overcrowding in Alabama prisons. We reverse.

A general familiarity with the procedural history of this case is necessary to understand our disposition of the jurisdictional and substantive issues. Brought by inmates in Alabama prisons, this class action resulted in injunctive relief followed by a consent decree requiring state officials to reduce the number of prisoners in county

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jails. When overcrowding worsened, plaintiffs moved for a court order directing the release of prisoners. In response to the prisoners' motion, the district court ordered the Department of Corrections to submit periodic lists of 250 prisoners "least deserving of further incarceration."

Soon thereafter, The Birmingham News Company wrote to the Department of Corrections and the district judge requesting copies of the lists. The Department responded that it could not release the lists without the permission of the judge who also denied the newspaper's request. In his reply letter, the judge voiced his fear that publication of the lists could cause unrest among prisoners whose hopes for early release might be falsely raised and could disrupt the smooth operation of his office by producing a barrage of telephone calls and letters.

When The Birmingham News Company and The Advertiser Company filed formal applications to inspect and copy the lists, the court held a hearing at which the Commissioner of the Department of Corrections testified. Although he stated that publication could result in disturbances in prisons, he refused to term the likelihood of unrest as greater than a "possibility." The Commissioner also acknowledged that the actual publication of the first list, which The Birmingham News Company had obtained through some undisclosed source, had not caused any problems among inmates. Nonetheless, the district court denied the newspapers' applications.

The court did offer, however, to allow the media to inspect the lists if they promised not to publish them. Declining the offer, The Advertiser Company filed a second application to inspect and copy the lists as well as an application to be granted access to all further hearings in the case. In a brief order, which is the subject of this appeal, the court denied both applications, echoing its earlier fear of inmate unrest if the plan to release selected prisoners gained too much premature publicity. The order also denied an application by The Advertiser Company to attend hearings in a related suit concerning prison conditions in Montgomery County jails.

Prior to the order, the court had summarily closed a contempt hearing in the Montgomery litigation. After the order, the court followed the same approach, precluding without prior notice the public and press from attending an in camera hearing in the state prison litigation.

In the meantime, the court had begun to order the release of prisoners selected by the judge. The first release order, which became part of the record available to the public, provided the names of the 277 prisoners to be released. Although the order thus provided the press with the names of prisoners to be released, it did not include the lists submitted by the Department of Corrections, which may have included more, less or different names.

Prior to state compliance with a second release order, this Court ruled that the district court had exceeded its authority in selecting inmates to be released from prison. The Court reasoned that the district court should enforce a consent decree requiring reductions in prison overcrowding through its contempt power. Newman v. Alabama, 683 F.2d 1312 (11th Cir.1982).

While that decision terminated the district court's release program, the problem of press and public access still persists in the litigation. In November, after this Court heard oral argument in this appeal, the district court denied without opinion a motion by The Advertiser Company to attend a "pretrial" hearing. On an emergency motion to this Court, we ordered the district court to "conduct no further proceedings in this case except in open court to which public and press have access unless a hearing is held and findings and reasons for closure of any particular proceeding are set forth in an appropriate manner and certified to this Court for emergency review."

Since neither party has argued either the standing of The Advertiser Company, not a party to the underlying litigation, or appealability of the district court orders, we need not tarry long with those...

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