Doe v. Schneider

• Decision Date: 13 January 1978
• Docket Number: Civ. A. No. 75-38-C6.
• Citation: 443 F. Supp. 780
• Court: U.S. District Court — District of Kansas
• Parties: John DOE, on behalf of himself and all others similarly situated, the Kansas Civil Liberties Union, representing John Doe on behalf of himself and all others similarly situated, Diana Gurley, on behalf of herself and all others similarly situated, and Dr. Jan Flora, on behalf of himself and all others similarly situated, Plaintiffs, v. Curt SCHNEIDER, and in his official capacity as Attorney General of the State of Kansas, and William Albott, and in his official capacity as Director of the Kansas Bureau of Investigation, Defendants.

443 F. Supp. 780

John DOE, on behalf of himself and all others similarly situated, the Kansas Civil Liberties Union, representing John Doe on behalf of himself and all others similarly situated, Diana Gurley, on behalf of herself and all others similarly situated, and Dr. Jan Flora, on behalf of himself and all others similarly situated, Plaintiffs, v. Curt SCHNEIDER, and in his official capacity as Attorney General of the State of Kansas, and William Albott, and in his official capacity as Director of the Kansas Bureau of Investigation, Defendants.

Civ. A. No. 75-38-C6.

United States District Court, D. Kansas.

January 13, 1978.

E. L. Kinch, Robert R. Arnold, Wichita, Kan., Terry D. Watson, Topeka, Kan., Jack D. Novik, American Civil Liberties Union Foundation, New York City, for plaintiffs.

Michael B. Rees and Michael C. Cavell, Asst. Attys. Gen., Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

O'CONNOR, District Judge.

I.

Defendant Schneider is the Attorney General of the State of Kansas. Shortly after taking office in January of 1975, Mr. Schneider announced that he had discovered the existence of hundreds of files kept by the Kansas Bureau of Investigation (KBI), which, in his opinion, had little or no law enforcement value. The Attorney General reportedly stated that the subjects of the files were public officials and private individuals who had never been charged with a crime, and was further quoted as stating that the files consist of "gossip," and "smack of invasion of privacy." The Attorney General later announced that 73 of the files in question would be destroyed, and the remainder would be reviewed thoroughly and destroyed if they were found not to have "relevant material." (See Exhibits attached to plaintiffs' complaint).

Before any action was taken on the Attorney General's directive to destroy certain of the files, this lawsuit was filed. Plaintiffs do not (in this action) seek damages for invasion of privacy; instead they seek an order from this court directing the defendants to turn over each file to the individual who is the subject of that file. Once aware of what is contained in the file, the individuals themselves will be able to determine whether and to what extent they have been damaged, and decide whether or not to bring an action for damages for invasion of privacy.

The following "statement of the case" was provided by the plaintiffs in their amended complaint, and reiterated in their suggestions in opposition to the defendants' motion to dismiss:

"This is a civil rights action for equitable, specifically, injunctive, relief:

a) to enjoin the defendants from destroying any and all Kansas Bureau of Investigation files now in their possession, custody and control that contain information on individual citizens that has no lawful or valid law enforcement purpose; and b) to compel the defendants to deliver said files, any and all copies thereof, including microfilm or similar copies, and log sheets or other records showing any and all parties who had access thereto, to this Court in order that this Court may and shall notify all individual citizens whose names appear in said files that said information is contained in said files pertinent to them and to provide said citizens access thereto, with or without counsel, for examination and copying thereof within a reasonable time following said notification. (This is not an action for damages.)

The plaintiffs' request for injunctive relief herein is based on their right of access to the federal courts guaranteed by Acts of Congress, the due process and privileges and immunities clauses of the Fourteenth Amendment and the First, Fifth and Sixth Amendments to the Constitution of the United States for the redress of deprivations of civil rights.

Although the action is not an action for damages, the injunctive relief requested by the plaintiffs herein is essential to the plaintiffs' and others' rights to sue for damages for:

a) deprivations of Constitutional rights of the First Amendment (including the rights to privacy, freedom of expression, speech, assembly, association and religion and to petition the government for redress of grievances), the Fourth Amendment (including the rights to privacy and to be free from unreasonable search and seizure), the Fifth Amendment (including the rights of privacy, and due process), the Ninth Amendment (including the right to privacy), and the Fourteenth Amendment (including the rights to due process, privacy, liberty, equal protection, privileges and immunities, to be free of arbitrary state action exceeding the legitimate police power of the state, i. e., abuse of power, privacy and property); and

b) deprivations of civil rights provided by 18 U.S.C. 2520, 42 U.S.C. 1983, 1985, 1986 and 1988; and

c) tort injury under the common law for defamation (including libel and slander) and invasion of privacy.

This action arises under 42 U.S.C. 1983 in conjunction with the First, Fifth, Sixth and Fourteenth Amendments; this Court has jurisdiction thereof under 28 U.S.C. 1343(3) and (4)." (Emphasis not supplied).

Plaintiffs have provided us with the following characterizations of themselves:

"1. John Doe is a citizen whose name appears in a file or files now in the possession and custody of the defendants, said file or files pertinent to him containing information that has no lawful or valid law enforcement purpose.

2. The Kansas Civil Liberties Union is an association which has a unique function and goal as an organization to safeguard the Constitutional and civil rights of all citizens in litigation representation which seeks vindication of governmental deprivation of civil rights; it has an interest in all governmental intrusions of Constitutional and civil rights of citizens and stands ready to represent any citizen so affected pro bono.

3. Diana Gurley is a citizen-resident of Topeka, Kansas, who wishes to know whether her name is contained in any file or files in the possession and custody of the defendants, said file or files containing information that has no lawful or valid law enforcement purpose; further, whether any file or files contain information about her that has no lawful or valid law enforcement purpose.

4. Dr. Jan Flora is a citizen-resident of Manhattan, Kansas, and a teacher at Kansas State University, Manhattan, Kansas, who has reason to believe that his name appears in a file or files now in the possession and custody of the defendants, said file or files pertinent to him containing information that has no lawful or valid law enforcement purpose."

In addition, plaintiffs attempt to bring this lawsuit as a class action. The class is described as consisting of John Doe, Dr. Jan Flora, Diana Gurley, and all persons similarly situated, and the members of plaintiff KCLU.

Shortly after the commencement of this action, defendants agreed to, and the court entered an order directing the defendants to refrain from destroying any of the files in question pending determination of the case.

Defendants have filed a joint motion to dismiss. The motion is premised on three arguments: (1) the plaintiffs lack standing to sue; (2) this action is barred by the immunity granted to the State of Kansas under the Eleventh Amendment to the United States Constitution; and (3) plaintiffs have failed to state a claim for violation of their constitutional right of access to the courts.

Over the past two years, the parties have thoroughly briefed their respective positions. After giving this matter thorough consideration, the court has determined that the motion to dismiss should be sustained because of plaintiffs' failure to state a claim for violation of their constitutional right of access to the courts.

II.

The theory upon which plaintiffs' cause of action rests is that their right of access to the courts will be violated if the files are not turned over to the persons to whom the files pertain. The essence of plaintiffs' argument is that individuals whose privacy has been invaded, but who may not be aware of it or may be unable to prove it, have an inherent "right to know" so that they may properly assess their damages, if any, and seek proper compensatory relief from a court. If the files are never released, the argument continues, the individuals harmed will never be able to seek relief in court, and will therefore have suffered injuries for which there are no remedies.

The constitutional right of access to the courts is a concept which is nebulous at best. Even the constitutional origins of the right are unclear. Perhaps the right is most often regarded as springing from the Due Process Clause of the Fourteenth Amendment (as well as the Fifth Amendment). As early as 1885, the Supreme Court stated that the Fourteenth Amendment was intended, inter alia, that all persons "should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one a than are laid upon others in the same calling and condition . . ." (Emphasis supplied). Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923 (1885);¹ quoted with approval in Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254 (1921).²

The right of access to the courts is also spoken of in connection with the First Amendment. In United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971), Justice Black, speaking for the Court, stated:

"The common thread running through our decisions in NAACP v. Button, Trainmen, and United Mineworkers³ is that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment. However, that right would

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