COMMISSIONER, Al Doc v. Advance Local Media, Llc

Decision Date18 March 2019
Docket NumberNo. 18-12402,18-12402
Citation918 F.3d 1161
Parties COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Holman CF Warden, Donaldson CF Warden, Defendants-Appellants, v. ADVANCE LOCAL MEDIA, LLC, d.b.a. Alabama Media Group, Montgomery Advertiser, The Associated Press, Intervenors-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Gabriella E. Alonso, John Gordon Thompson, Jr., Lightfoot Franklin & White, LLC, Birmingham, AL, John Langford, Catherine Martinez, Yale Law School, New Haven, CT, for Intervenors-Appellees.

Thomas R. Govan, Jr., U.S. Attorney's Office, Lauren Ashley Simpson, Beth Jackson Hughes, Henry M. Johnson, Eric Michael Palmer, Alabama Attorney General's Office, Montgomery, AL, for Defendants-Appellants.

Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

WILSON, Circuit Judge:

This appeal concerns the common law right of access to documents upon which a court has relied to decide issues in a case. In the underlying suit, death row inmate Doyle Lee Hamm brought an as-applied challenge under 42 U.S.C. § 1983, arguing that Alabama’s attempt to execute him via lethal injection would violate the Eighth Amendment. During the litigation, Alabama submitted its lethal injection protocol to the district court. The protocol was never formally filed with the court, but was subjected to expert testimony, debated at hearings, and relied upon by the court in denying both Alabama’s motion for summary judgment and Hamm’s request for a preliminary injunction. After Hamm’s case was dismissed, members of the press intervened, seeking access to the protocol. The district court granted these intervenors access to a redacted version of the protocol. The Commissioner of the Alabama Department of Corrections now appeals, arguing that the court erred in (1) allowing the press to intervene and (2) determining that the protocol was a judicial record subject to the common law right of access. After careful consideration and the benefit of oral argument, we affirm.

I. Factual and Procedural Background

Doyle Lee Hamm was sentenced to death in 1987 and, after a series of unsuccessful direct and collateral challenges to his sentence, was set to be executed in February 2018. In December 2017, Hamm filed an action in the Northern District of Alabama under 42 U.S.C. § 1983, challenging the constitutionality of Alabama’s lethal injection protocol as applied to him, because he suffered from "severely compromised veins" due to drug use, Hepatitis C

, and cancer. Hamm v. Dunn , 302 F.Supp.3d 1287 (N.D. Ala. 2018), vacated and remanded sub nom. by

Hamm v. Comm’r, Ala. Dep’t of Corr. , No. 18-10473, 2018 WL 2171185 (11th Cir. Feb. 13, 2018). Hamm sought to enjoin Alabama from using the protocol to perform his execution.

In January 2018, Alabama moved for summary judgment. The district court ordered expedited briefing and scheduled an evidentiary hearing for January 31 to address Alabama’s dispositive motions and Hamm’s request for injunctive relief. After the court entered a protective order to keep the lethal injection protocol confidential, Alabama provided a copy of the protocol to the court for in camera review and gave Hamm a redacted copy of the protocol. Likewise, the portion of the evidentiary hearing that focused on the protocol was conducted in camera . Both parties and the court discussed the contents of the lethal injection protocol, but neither party moved to admit the protocol into evidence or attach it as an exhibit to any motion or pleading.

Less than three weeks before Hamm was set to be executed, the district court denied Alabama’s motion for summary judgment and temporarily stayed Hamm’s execution. In its publicly available orders denying summary judgment, the district court summarized Alabama’s lethal injection protocol and discussed how the protocol applied to Hamm’s specific medical conditions. This Court vacated the district court’s stay but directed the court to obtain an independent medical examination and make any concomitant factual findings by February 20—two days before Hamm’s execution date. The district court held another in camera hearing on February 16 to hear testimony from the independent medical examiner. The examiner testified that Hamm had accessible and usable veins in his lower extremities.

Four days later, the district court denied Hamm’s request for a preliminary injunction, summarizing the contents of the February 16 hearing and reasoning that Alabama’s lethal injection protocol, as applied to Hamm, did not present "sufficiently imminent dangers" and was not likely to result in serious illness or needless suffering that would violate the Eighth Amendment. Hamm appealed. This Court affirmed the district court but ordered Alabama to have ultrasound technology and a doctor at the execution.

On the day of his execution—February 22, 2018—Hamm petitioned the Supreme Court for a stay and writ of certiorari. His petition was denied. Alabama then attempted to execute Hamm, but after several unsuccessful efforts to insert a needle, called off the execution an hour before its midnight deadline. The botched execution attempt received national media coverage.

Hamm filed a second amended complaint describing Alabama’s failed efforts to execute him, but both parties agreed to dismiss these claims (some with prejudice and some without prejudice) on the same day that the claims were filed. Two days later, the district court dismissed the action. On March 28, the same day the court dismissed the action, Alabama Media Group,1 the Montgomery Advertiser, and the Associated Press (collectively, Intervenors) moved to intervene in Hamm’s case under Rule 24 of the Federal Rules of Civil Procedure to unseal the records, transcripts, and briefs discussing Alabama’s execution protocol. On March 30, the court granted intervention as a matter of right under Rule 24(a),2 but reserved ruling on the request for access to the protocol and related documents. In response to the request for access, Alabama asked the court to reconsider its decision to allow intervention and, alternatively, argued that the request for access should be denied because (1) the lethal injection protocol was not a publicly accessible judicial record, and (2) the Intervenors had no common law right of access to the protocol.

The district court denied Alabama’s request to reconsider intervention and granted Intervenorsmotion to unseal the protocol and related records. The court emphasized that Hamm’s case had occurred under rushed circumstances, and concluded that failure to formally file the protocol did not make it a non-judicial record because the court "needed and relied upon the protocol to resolve [the State’s] motion for summary judgment and Mr. Hamm’s request for injunctive relief," and other judicial records referred to the protocol.3 The court also found that Alabama failed to show interests sufficient to overcome the public’s common law right of access to the protocol.

The district court issued two orders. The first order clarified what it unsealed, including redacted versions of (1) the protocol, (2) the sealed transcript of the January 31 in camera evidentiary hearing, (3) the sealed transcript of the February 16 closed medical examiner hearing, and (4) Hamm’s motion for leave to supplement his first amended complaint. The second order instructed Alabama to file, under seal, a redacted copy of the protocol for the court to review before releasing it. Alabama appealed and moved to stay the release of the protocol pending this appeal. The district court granted Alabama’s motion to stay; we now consider the state’s appeal.

II. The Common Law Right of Access to Judicial Records

Whether a document is a "judicial record" subject to the common law right of access is a question of law we review de novo. Accord In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D) , 707 F.3d 283, 290 (4th Cir. 2013). We review a decision to unseal documents for abuse of discretion. FTC v. AbbVie Prods., LLC , 713 F.3d 54, 61 (11th Cir. 2013). Under the abuse of discretion standard, a court has a range of choices available to it. See McLane Co., Inc. v. EEOC , ––– U.S. ––––, 137 S.Ct. 1159, 1169, 197 L.Ed.2d 500 (2017) ; United States v. Frazier , 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc).

"It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc’ns, Inc. , 435 U.S. 589, 597, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978). The media and public presumptively have a right to access judicial records. Chicago Tribune Co. v. Bridgestone/Firestone, Inc. , 263 F.3d 1304, 1311 (11th Cir. 2001) (per curiam). The common law right of access to judicial records " ‘establish[es] a general presumption that criminal and civil actions should be conducted publicly’ and ‘includes the right to inspect and copy public records and documents.’ It is ‘an essential component of our system of justice’ and ‘is instrumental in securing the integrity of the process.’ " AbbVie Prods., LLC , 713 F.3d at 62 (quoting Chicago Tribune , 263 F.3d at 1311 ).4 Access to public and judicial records protects "the citizen’s desire to keep a watchful eye on the workings of public agencies, and ... a newspaper publisher’s intention to publish information concerning the operation of government." Nixon , 435 U.S. at 597–98, 98 S.Ct. at 1312 (citations omitted); see also Romero v. Drummond Co., Inc. , 480 F.3d 1234, 1246 (11th Cir. 2007) (finding that these public concerns were at the "heart of the interest protected by the right of access"). Judges should exercise discretion in deciding to release judicial records and should exhibit a "sensitive appreciation of the circumstances that led to their production." Nixon , 435 U.S. at 603, 98 S.Ct. at 1315.5

A. Judicial Records

To determine whether Alabama’s lethal injection protocol is subject to the common law right of access, we must first...

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