Amelkin v. McClure

• Decision Date: 02 June 2003
• Docket Number: No. 02-5079.,02-5079.
• Citation: 330 F.3d 822
• Parties: Stephen AMELKIN et al., Plaintiffs-Appellants, v. Ann McCLURE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 822

330 F.3d 822

Stephen AMELKIN et al., Plaintiffs-Appellants, v. Ann McCLURE et al., Defendants-Appellees.

No. 02-5079.

United States Court of Appeals, Sixth Circuit.

Argued May 7, 2003.

Decided and Filed June 2, 2003.

Mary J. Lintner (briefed), Donald L. Cox (argued and briefed), Lynch, Cox, Gilman & Mahan, Louisville, KY, for Plaintiffs-Appellants.

Lucy B. Richardson, Barbara W. Jones, Commonwealth of Kentucky, Frankfort, KY, James M. Herrick (argued and briefed), Kentucky State Police Legal Office, Frankfort, KY, William B. Pettus Asst. U.S. Atty., Office of Atty. Gen., Civil & Environmental Law Div., Frankfort, KY, D. Brent Irvin, Asst. Atty. Gen, (briefed), Office of Atty. Gen., Frankfort, KY, N. Scott Lilly, Mitchell L. Perry, Jefferson County Attorney's Office, Louisville, KY, Paul V. Guagliardo, City of Louisville, KY, Laurence J. Zielke (briefed), John H. Dwyer, Jr. (argued), Pedley, Zielke, & Gordinier, Louisville, KY, for Defendants-Appellees.

Before KRUPANSKY, SILER, and GILMAN, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

A number of attorneys and chiropractors filed suit to challenge the constitutionality of two Kentucky statutes that restrict their access to accident reports filed with the Department of State Police. The district court granted summary judgment in favor of the defendants. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

In 1994, Kentucky amended § 189.635 of its Revised Statutes for the ostensible purpose of protecting the privacy of accident victims. Subsections (5) and (6) of the statute currently provide as follows:

(5) All accident reports filed with the Department of State Police in compliance with subsection (4) above shall remain confidential except that the department may disclose the identity of a person involved in an accident when his identity is not otherwise known or when he denies his presence at an accident. Except as provided in subsection (7) of this section, all other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (6) of this section. These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is party to the accident, and the insurers of any party who is the subject of the report, or to the attorneys of the parties.

(6) The report shall be made available to a news-gathering organization, solely for the purpose of publishing or broadcasting the news. The news-gathering organization shall not use or distribute the report, or knowingly allow its use or distribution, for a commercial purpose other than the news-gathering organization's publication or broadcasting of the information in the report. A newspaper, periodical, or radio or television station shall not be held to have used or knowingly allowed the use of the report for a commercial purpose merely because of its publication or broadcast.

Ky.Rev.Stat. Ann. § 189.635 (Michie supp. 2002).

Almost immediately after § 189.635 was amended, a group of chiropractors and attorneys filed suit against Ann McClure (a custodian of accident reports at a local state police post) and an assortment of other government officials, seeking an injunction against its enforcement. In August of 1994, the district court issued a preliminary injunction to enjoin the enforcement of § 189.635 after concluding that the statute impermissibly restricted commercial speech. The defendants immediately appealed. In February of 1996, this court dissolved the preliminary injunction and remanded the case back to the district court because one of the defendants had not had an opportunity to oppose the plaintiffs' motion for injunctive relief. Amelkin v. McClure, No. 94-6161, 1996 WL 8112 (6th Cir. Jan.9, 1996) (Amelkin I).

The plaintiffs then filed a second amended complaint. Their principal new allegation was a claim that, during the time that § 189.635 had been enjoined, the defendants had applied § 61.874 of the Kentucky Revised Statutes in an unconstitutional manner. Section 61.874(3) provides in pertinent part as follows: "The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction...." According to the plaintiffs, the defendants charged them between $40 and $230 per accident report during the pendency of the injunction, although before that time the copying fee was only 10 cents per page. The plaintiffs sought an injunction against the enforcement of § 61.874. In June of 1996, the district court preliminarily and permanently enjoined enforcement of both §§ 189.635 and 61.874. Amelkin v. Comm'r, Dep't of State Police, 936 F.Supp. 428 (W.D.Ky. 1996).

The defendants appealed. This court affirmed the district court's decision to enjoin the enforcement of § 189.635, but vacated the injunction against § 61.874 and remanded for reconsideration because the district court had failed to provide any findings of fact or conclusions of law as to that section. Amelkin v. McClure, 168 F.3d 893 (6th Cir.1999) (Amelkin II). The defendants then sought review by the Supreme Court.

After granting certiorari, the Supreme Court vacated the Sixth Circuit's decision and remanded the case for further consideration in light of Los Angeles Police Department v. United Reporting Publishing Corp., 528 U.S. 32, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999). In United Reporting, the Supreme Court held that a California statute that placed conditions on public access to the records of recent arrestees' addresses was not susceptible to a facial challenge regarding its constitutionality. This court concluded upon remand that § 189.635 was similarly not subject to a facial challenge. Accordingly, the district court's injunction against the enforcement of § 189.635 was reversed and the case remanded so that the district court could consider the plaintiffs' challenge to the statute as applied to them. Amelkin v. McClure, 205 F.3d 293 (2000) (Amelkin III).

In June of 2001, the district court dissolved all injunctions that had previously been entered in the case. Both parties then moved for summary judgment. The district court concluded that § 189.635 did not abridge the plaintiffs' constitutional rights and that the challenge to § 61.874 was moot because the plaintiffs were not entitled to obtain copies of the accident reports at any price. It therefore awarded summary judgment in favor of the defendants. Amelkin v. McClure, 178 F.Supp.2d 766 (W.D.Ky.2001). This timely appeal followed.

II. ANALYSIS

We review the district court's grant of summary judgment de novo. Sperle v. Mich. Dep't of Corr., 297 F.3d 483, 490 (6th Cir.2002). Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

Because both sides in the present case moved for summary judgment, "[t]here is no dispute regarding the material facts of this case; indeed, each party insists that the facts as presented to the district court require summary judgment in his or her favor." Kincaid v. Gibson, 236 F.3d 342, 346 (6th Cir.2001) (en banc). We may therefore assume, although we are not obligated to do so, "that there is no evidence which needs to be considered other than that which has been filed by the parties." Id. at 347.

As an initial matter, the defendants contend that the law of the case bars any argument that § 189.635 violates the plaintiffs' First Amendment rights. They claim that "[t]he exact issue now argued by Appellants — whether KRS 189.635 abridges their freedom of speech — has already been answered in the negative by this Court." (Emphasis in original.) This contention is incorrect. The court in Amelkin III decided only that "§ 189.635 is ... not subject to a facial challenge...." 205 F.3d at 296. It therefore "reverse[d] and remand[ed] the case for the district court to consider the plaintiffs' as-applied challenge." Id.

A "facial overbreadth challenge to a statute is an exception to the traditional rule that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." Los Angeles Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (internal quotation marks omitted). See generally Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L.Rev. 1321 (2000) (identifying and evaluating the nature of "facial" and "overbreadth" challenges). This exception has two distinct aspects: it determines (1) who may challenge a statute, and (2) on what grounds a statute may be challenged.

In United Reporting, the information-gathering plaintiff sought to challenge the statute on the ground that it violated the rights of third parties (United Reporting's customers). Because the Supreme Court held that a facial overbreadth challenge was unavailable, the plaintiff was not the proper party to seek the statute's invalidation. United Reporting had not attempted to qualify under the statute to obtain the addresses of arrestees, 528 U.S. at 40, 120 S.Ct. 483, and it could not proceed on the theory that although the law might be constitutional as to itself, it could not be constitutionally applied to others, id. at 40-41, 120 S.Ct. 483.

The instant case differs in that the plaintiffs have in fact sought to obtain accident reports filed with the Department of State Police. They are thus asserting that § 189.635 violates their personal First Amendment rights. In asserting their own rights, however, the plaintiffs cannot prevail on...