Detroit Free Press v. Ashcroft, 02-70339.

• Decision Date: 03 April 2002
• Docket Number: No. 02-70339.,No. 02-70340.,02-70339.,02-70340.
• Citation: 195 F.Supp.2d 937
• Parties: DETROIT FREE PRESS, et al., Plaintiffs, v. John ASHCROFT, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

195 F.Supp.2d 937

DETROIT FREE PRESS, et al., Plaintiffs, v. John ASHCROFT, et al., Defendants.

No. 02-70339.

No. 02-70340.

United States District Court, E.D. Michigan, Southern Division.

April 3, 2002.

COPYRIGHT MATERIAL OMITTED

Herschel P. Fink, Brian D. Wassom, Honigman, Miller, Detroit, MI, for Detroit Free Press, Inc.

Jonathan D. Rowe, Soble & Rowe, Ann Arbor, MI, for Herald Co., Inc.

L. Michael Wicks, U.S. Attorney's Office, Detroit, MI, Thankful L. Vanderstar, U.S. Dept. of Justice, Office of Immigration Lit., Washington, DC, for defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION [2-1] AND DENYING DEFENDANTS' MOTION TO DISMISS COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED [10-1]¹

EDMUNDS, District Judge.

In the wake of the horrific events of September 11, 2001, the United States Government launched an extensive, broad-based investigation into the terrorist attacks and other potential threats to United States citizens and interests. As part of that investigation, the Government has identified, questioned, and instituted removal proceedings against a number of non-citizens, primarily young men of Arab or Muslim background. These proceedings have been closed to the press and public.

Arguing that the closure of these hearings is unconstitutional, plaintiffs in three separate cases seek an injunction against such procedure in any future hearings. Arguing that this Court lacks jurisdiction and that no constitutional rights are abridged by the exclusion of the press and public from the hearings, the Government asks that the cases be dismissed, or, in the alternative that the Court apply a deferential level of scrutiny to the Government's action.

Although the structure of the Government's argument is built on statutory interpretation, jurisdiction, and administrative procedures, the subtext is all about the Government's right to suspend certain personal liberties in the pursuit of national security. In this regard, plaintiffs have responded with a citation to Duncan v. Kahanamoku, 327 U.S. 304, 329-30, 66 S.Ct. 606, 90 L.Ed. 688 (1946)(Murphy, J., concurring), in which Justice Murphy condemned constitutional violations made in the wake of the attack on Pearl Harbor:

We may assume that the threat to Hawaii was a real one; we may also take it for granted that the general declaration of martial law was justified. But it does not follow from these assumptions that the military was free [to violate the] Constitution ... especially after the initial shock of the sudden Japanese attack had been dissipated.

From time immemorial despots have used real or imagined threats to the public welfare as an excuse for needlessly abrogating human rights. That excuse is no less unworthy of our traditions when used in this day of atomic warfare or at a future time when some other type of warfare may be devised. The ... constitutional rights of an accused individual are too fundamental to be sacrificed merely through a reasonable fear of military assault. There must be some overpowering factor that makes a recognition of those rights incompatible with the public safety before we should consent to their temporary suspension.

For the reasons stated below, this Court agrees that it has jurisdiction to hear these cases, and that the blanket closure of the removal hearings in "special interest" cases is unconstitutional.²

I. The Parties

Members of the press and public filed two of the cases challenging the Government's closure of removal proceedings. The plaintiffs in those cases are (1) the Detroit Free Press, Inc. and Herald Co., Inc. (d/b/a the Ann Arbor News)(the "Free Press Plaintiffs") and (2) the Detroit News, Inc., Congressman John Conyers, Jr., and Metro Times, Inc. (the "Detroit News Plaintiffs")(collectively the "Newspaper Plaintiffs").³ The third case was filed by Rabih Haddad ("Haddad"), one of the men against whom the Government has instituted removal proceedings.⁴ The defendants in all of the cases are Attorney General John Ashcroft, Chief Immigration Judge Michael Creppy, and Immigration Judge Elizabeth Hacker (collectively "the Government").

II. Factual Background

Haddad, a native of Lebanon, resided in Ann Arbor, Michigan off-and-on since 1988.⁵ See Haddad Mot. ¶ 4. Haddad and his family most recently came to the United States in 1998 on six-month tourist visas.⁶ See id. Ex. A ¶ 3. On December 14, 2001, the United States Immigration and Naturalization Service ("INS") took Haddad into custody for overstaying his visa and initiated removal proceedings in Detroit before Immigration Judge Elizabeth Hacker. See id. ¶¶ 5 & 7.

On September 21, 2001, prior to Haddad's arrest, Chief Immigration Judge Michael Creppy issued a directive (the "Creppy directive") to all United States Immigration Judges mandating that they close immigration proceedings to the press and public (including family members of the deportee) in certain "special interest" cases identified by the Office of the Chief Immigration Judge. See Haddad Mot. ¶ 6. Chief Immigration Judge Creppy issued this directive under United States Attorney General John Ashcroft's authorization. See id. ¶ 8.

On December 19, 2002, Immigration Judge Hacker conducted a bond hearing in Haddad's case. See Haddad Mot. ¶ 16. Haddad's family, members of the public, and the Newspaper Plaintiffs sought to attend the hearing. See id. However shortly before the hearing began, and without prior notice to Haddad or his counsel, courtroom security officers announced that the hearing was closed to the press and public. See id. Haddad objected to the closure of his hearing. See id. ¶ 18. Immigration Judge Hacker stated that the decision to close the proceedings came from her supervisors and that she lacked the power to reverse the decision. See id. Following the December 19 hearing, Judge Hacker denied bail and ordered Haddad detained. See id. ¶ 22. Subsequent hearings, conducted on January 2 and 10, 2002, also were closed to the press and public. See Detroit Free Press Mot. at 4 ¶¶ 10 & 11. Haddad remains in detention and has been transferred to Chicago for additional proceedings. See Haddad Mot. ¶¶ 29 & 31. The next hearing in his case is scheduled for April 10, 2002.

In response to the closure, Haddad and the Newspaper Plaintiffs filed their complaints for injunctive and declarative relief against the Government. Haddad claims that the Government's actions violate his rights under (1) the Administrative Procedures Act ("APA"), 5 U.S.C. § 551 et seq.; (2) the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et sq., and the regulations promulgated thereunder, 8 C.F.R. §§ 3.27 & 240.10; and (3) the Due Process Clause of the Fifth Amendment of the United States Constitution. The Newspaper Plaintiffs claim that they have a right of access to such hearings pursuant to the First Amendment of the United States Constitution, as well as statutory and regulatory law. The Newspaper Plaintiffs seek a declaratory judgment that the Creppy directive, facially and as applied, violates their right of access. They additionally request a preliminary injunction enjoining the Government from closing future proceedings related to Haddad and requiring it to produce transcripts of all previously held proceedings and copies of all documents related to Haddad's case.

III. Applicable Law

To determine whether to grant a motion for preliminary injunction, a court must analyze the following four factors:

(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.

Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir.2001). The primary issue in this case, and on which the parties focus their pleadings, is whether the Newspaper Plaintiffs have a strong likelihood of success on the merits. Resolution of this issue rests upon whether the First Amendment of the United States Constitution confers upon the Newspaper Plaintiffs a right of access to removal proceedings.

A. The Likelihood of the Newspaper Plaintiffs' Success on the Merits: Whether the Newspaper Plaintiffs Have a First Amendment Right of Access to Haddad's Removal Proceedings

Since 1979, the Supreme Court has decided numerous cases addressing the press' right of access to various types of proceedings. See, e.g., Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)("Press-Enterprise I"); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986)("Press-Enterprise II"). In analyzing the press' First Amendment claims of access in these cases, the Supreme Court considered two factors: "First the proceeding must be one for which there has been a `tradition of accessibility'" and "[s]econd, public access must play a `significant positive role in the function of the particular process in question.'" Cincinnati Gas and Elec. Co. v. General Elec. Co., 854 F.2d 900, 903 (6th Cir.1988)(citing Press-Enterprise II, 478 U.S. at 8-9, 106 S.Ct. 2735). In Press-Enterprise II, the Court explained that the first element requires a determination as to "whether the place and process [to which access is sought] has historically been open to the press and general public." Id. Invoking this analysis, courts consistently have found a right of access to civil proceedings and quasi-judicial administrative proceedings. See, e.g., Brown & Williamson Tobacco Corp. v. FTC, 710...