Associated Press, In re, Nos. 98-1267

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore WOOD, JR., RIPPLE and ROVNER; RIPPLE
Citation162 F.3d 503
PartiesIn re: ASSOCIATED PRESS, Chicago Tribune Company, Illinois Press Association, Copley Press, Incorporated, Petitioners. UNITED STATES of America, Plaintiff-Appellee, v. William D. LADD, Management Services of Illinois, Incorporated, et al., Defendants-Appellees. Appeal of: Associated Press, Chicago Tribune Company, Illinois Press Association, et al.
Decision Date07 December 1998
Docket Number98-1474,Nos. 98-1267

Page 503

162 F.3d 503
In re: ASSOCIATED PRESS, Chicago Tribune Company, Illinois
Press Association, Copley Press, Incorporated,
Petitioners.
UNITED STATES of America, Plaintiff-Appellee,
v.
William D. LADD, Management Services of Illinois,
Incorporated, et al., Defendants-Appellees.
Appeal of: Associated Press, Chicago Tribune Company,
Illinois Press Association, et al.
Nos. 98-1267, 98-1474.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 23, 1998.
Decided Dec. 7, 1998.

Page 505

Joseph P. Thorton (argued), Craven & Thorton, Springfield, IL, for Petitioners in No. 98-1267.

J. Douglas Wilson (argued), Patrick J. Chesley, Office of the United States Attorney, Springfield, IL, for Respondent in No. 98-1267.

Ronald J. Stone, Stratton & Nardulli, Springfield, IL; J. Steven Beckett, Brett N. Olmstead, Beckett & Webber, Urbana, IL, for Parties-in-Interest in No. 98-1267.

Patrick J. Chesley, Office of the United States Attorney, Springfield, IL; J. Douglas Wilson (argued), Office of the United States Attorney, Criminal Division, Washington, DC, for Plaintiff-Appellee in No. 98-1474.

Ronald J. Stone, Stratton & Nardulli, Springfield, IL; Brett N. Olmstead, Beckett & Webber, Urbana, IL, for Defendants-Appellees in No. 98-1474.

Joseph P. Thornton (argued), Craven & Thornton, Springfield, IL, for Appellants in No. 98-1474.

Before WOOD, JR., RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

This appeal brings to us three rulings by the district court in the criminal trial of James R. Berger on charges of defrauding the Illinois Department of Public Aid. That trial ended in the acquittal of the defendant. 1 The appellants, various organizations that provided press coverage of the trial (hereinafter "the Press"), seek our review of the following rulings: (1) the district court's denial of the Press' petition to intervene, (2) the district court's denial of the Press' petition for release of records, and (3) the district court's overruling of the Press' objection concerning Governor Edgar's testimony. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand this case for further proceedings consistent with this opinion. 2

I
BACKGROUND

On August 23, 1996, Management Services of Illinois and four individual defendants were indicted on 25 counts involving bank fraud, money laundering and a scheme to defraud the Illinois Department of Public Aid. On October 24, 1996, the grand jury issued a superseding indictment that added James R. Berger as a defendant to the charges involving the Public Aid scheme. On June 23, 1997, the district court severed Mr. Berger's case from his co-defendants'. The other defendants went on trial during the summer of 1997.

Mr. Berger's trial began in November of 1997. Mr. Berger subpoenaed Illinois Governor James Edgar to testify as a defense witness. Governor Edgar's testimony was scheduled to take place on December 31, 1997. However, on December 30, a juror became ill, and the trial session scheduled for December 31 was therefore canceled. Because Governor Edgar was scheduled to leave on a three week trip to India on January 2, 1998, the parties and the district court agreed that his testimony would be taken by video deposition. On December 30, 1997, the Press filed an "Objection to Effort to Conduct Sworn Testimony of Governor Edgar in Camera," and on December 31, it filed a petition to intervene in the criminal case. On December 31, the district court overruled the "Objection" and denied the petition to intervene. The Governor's testimony was videotaped in the courtroom that same day, with only the parties, the district judge, court

Page 506

personnel and the Governor's attorneys in attendance.

On January 14, 1998, Mr. Berger played the Governor's videotaped testimony in its entirety for the jury in open court. The district court then released the video and its transcript to the public. On January 29, 1998, after Mr. Berger had been acquitted of all charges, the Press filed motions to reconsider the court's rulings on the petition to intervene and the objection to the Governor's testimony; it also filed a Petition for Release of various documents that were filed under seal in connection with Mr. Berger's trial. On the same day, the district court denied these three motions.

II
DISCUSSION

A. The Press' Right to Intervene

The district court denied the Press' motion to intervene. In this circuit, when a party has been unsuccessful in its motion to intervene, it may appeal only the order denying intervention. Because the motion to intervene was denied, the movant never became a party and thus has no standing to appeal any order other than the denial of intervention. See, e.g., Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 n. 14 (7th Cir.1993) (citing United States v. City of Chicago, 870 F.2d 1256, 1258 (7th Cir.1989)); B.H. v. Murphy, 984 F.2d 196, 199-200 (7th Cir.), cert. denied, 508 U.S. 960, 113 S.Ct. 2930, 124 L.Ed.2d 680 (1993). 3

As a starting point, we recall the fundamental proposition that the "public's right of access to court proceedings and documents is well-established." Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.1994); see also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). In Grove Fresh, we noted that this fundamental premise is grounded in three important policy concerns. "Public scrutiny over the court system serves to (1) promote community respect for the rule of law, (2) provide a check on the activities of judges and litigants, and (3) foster more accurate fact finding." Grove Fresh, 24 F.3d at 897 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980)). Born of the common law, this right also has constitutional underpinnings. See id. Indeed, the First Amendment provides a presumption that there is a right of access to "proceedings and documents which have 'historically been open to the public' and where the disclosure of which would serve a significant role in the functioning of the process in question." Id. (quoting United States v. Corbitt, 879 F.2d 224, 228 (7th Cir.1989)). As we also pointed out in Grove Fresh, this presumption of access is rebuttable when it is demonstrated that suppression is necessary to preserve "higher values" and when the suppression is "narrowly tailored" to serve those interests. Id. (quoting Press-Enterprise, 464 U.S. at 510, 104 S.Ct. 819) (internal quotation marks omitted). Overcoming the presumption, however, is a formidable task. The court must be "firmly convinced that disclosure is inappropriate before arriving at a decision limiting access." Id.

Our cases, and, indeed, the controlling jurisprudence of the Supreme Court of the United States, also have emphasized that the values that animate the presumption in favor of access require as a "necessary corollary" that, once access is found to be appropriate, access ought to be "immediate and contemporaneous." Id. (citing Nebraska Press Ass'n

Page 507

v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)) ("The newsworthiness of a particular story is often fleeting. To delay or postpone disclosure undermines the benefit of public scrutiny and may have the same result as complete suppression.").

In order to ensure the right of access--of "immediate and contemporary" access--our case law has recognized that those who seek access to such material have a right to be heard in a manner that gives full protection of the asserted right. See id. at 898 (noting that the press has standing to challenge a protective order). Such full protection requires adequate notice of any limitation of public access to judicial proceedings or documents and an adequate opportunity, under the circumstances of the case, to challenge that limitation by stating to the court the reasons why the material should remain subject to public scrutiny. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 & n. 25, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); see also Gannett Co. v. DePasquale, 443 U.S. 368, 401, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (Powell, J., concurring). 4 According such full protection also requires that the issue be examined in a procedural context that affords the court an opportunity for due deliberation. See Central Nat'l Bank v. United States Dep't of Treasury, 912 F.2d 897, 900 (7th Cir.1990).

In this circuit, we have intimated that the most appropriate procedural mechanism by which to accomplish this task is by permitting those who oppose the suppression of the material to intervene for that limited purpose. See United States v. Andreas, 150 F.3d 766, 767 (7th Cir.1998) (per curiam) (noting that the newspapers had intervened in the underlying action in order to assert the right of access to materials filed under seal); United States v. Corbitt, 879 F.2d 224, 226-27 (7th Cir.1989) (explaining that a newspaper publisher moved to intervene in the criminal case to request disclosure of the PSR and testimonial letters on which the district court had relied in sentencing, and that the district court apparently granted the motion to intervene and ultimately granted substantial access to the PSR and the letters); see also United States v. Peters, 754 F.2d 753, 756 (7th Cir.1985) (noting that the access issue is more appropriately reviewed on direct appeal rather than by mandamus). 5

Page 508

Other circuits have followed the same practice. 6

The Press submits that the district court erred in denying it the opportunity to intervene for the limited purpose of raising constitutional and common law claims of access to court proceedings. We agree. As we have just noted, the Supreme Court has recognized that the constitutional and common law right of access to judicial records...

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71 practice notes
  • Bond v. Utreras, No. 07-2651.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 10, 2009
    ...bringing a third-party challenge to a protective order, see Jessup v. Luther, 227 F.3d 993, 996-97 (7th Cir.2000); In re Associated Press, 162 F.3d 503, 507 (7th Cir.1998); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 896 (7th Cir.1994), that was in the context of reques......
  • City of Cleveland v. Ohio, No. 06-3611.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 21, 2007
    ...a party who unsuccessfully filed a motion to intervene from appealing anything but the order denying intervention. See In re Assoc. Press, 162 F.3d 503, 506 (7th Cir.1998); B.H. by Pierce v. Murphy, 984 F.2d 196, 199-200 (7th Cir.1993). However, that rule presupposes that the would-be appel......
  • Wernsing v. Thompson, No. 03-3956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 9, 2005
    ...is not enough. Walsh v. United States Dep't of Veterans Affairs, 400 F.3d 535, 537 (7th Cir.2005); accord In re Associated Press, 162 F.3d 503, 511 (7th Cir.1998) (requiring a "reasonable expectation that the same complaining party would be subjected to the same action again") (internal quo......
  • Nat'l R.R. Passenger Corp.. v. the Peoples Gas Light, Case No. 10 C 3970.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 3, 2011
    ...there is no reasonable expectation that the gas use tax will be imposed upon or collected from Amtrak. See In re Associated Press, 162 F.3d 503, 511 (7th Cir.1998) (requiring a “reasonable expectation that the same complaining party would be subjected to the same action again”). In light of......
  • Request a trial to view additional results
71 cases
  • Bond v. Utreras, No. 07-2651.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 10, 2009
    ...bringing a third-party challenge to a protective order, see Jessup v. Luther, 227 F.3d 993, 996-97 (7th Cir.2000); In re Associated Press, 162 F.3d 503, 507 (7th Cir.1998); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 896 (7th Cir.1994), that was in the context of reques......
  • City of Cleveland v. Ohio, No. 06-3611.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 21, 2007
    ...a party who unsuccessfully filed a motion to intervene from appealing anything but the order denying intervention. See In re Assoc. Press, 162 F.3d 503, 506 (7th Cir.1998); B.H. by Pierce v. Murphy, 984 F.2d 196, 199-200 (7th Cir.1993). However, that rule presupposes that the would-be appel......
  • Wernsing v. Thompson, No. 03-3956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 9, 2005
    ...is not enough. Walsh v. United States Dep't of Veterans Affairs, 400 F.3d 535, 537 (7th Cir.2005); accord In re Associated Press, 162 F.3d 503, 511 (7th Cir.1998) (requiring a "reasonable expectation that the same complaining party would be subjected to the same action again") (internal quo......
  • Nat'l R.R. Passenger Corp.. v. the Peoples Gas Light, Case No. 10 C 3970.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 3, 2011
    ...there is no reasonable expectation that the gas use tax will be imposed upon or collected from Amtrak. See In re Associated Press, 162 F.3d 503, 511 (7th Cir.1998) (requiring a “reasonable expectation that the same complaining party would be subjected to the same action again”). In light of......
  • Request a trial to view additional results

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