In re Capitol Broad. Co.
| Decision Date | 24 November 2021 |
| Docket Number | No. 20-1652,No. 20-1651,20-1651 |
| Citation | 19 F.4th 385 |
| Parties | IN RE: CAPITOL BROADCASTING COMPANY, INCORPORATED, d/b/a WRAL-TV; The News and Observer Publishing Company, d/b/a The News & Observer; WSOC Television LLC ; The Charlotte Observer Publishing Company, d/b/a The Charlotte Observer ; WTVD Television, LLC ; WUNC LLC; The Associated Press; The Washington Post, Appellants. In re: Capitol Broadcasting Company, Incorporated, d/b/a WRAL-TV; The News and Observer Publishing Company, d/b/a The News & Observer; WSOC Television LLC ; The Charlotte Observer Publishing Company, d/b/a The Charlotte Observer ; WTVD Television, LLC ; WUNC LLC; The Associated Press; The Washington Post, Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Michael J. Tadych, Hugh Stevens, STEVENS MARTIN VAUGHN & TADYCH, PLLC, Raleigh, North Carolina, for Appellants. Christopher Michael Anderson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Wade M. Smith, THARRINGTON SMITH LLP, Raleigh, North Carolina; C. Amanda Martin, STEVENS MARTIN VAUGHN & TADYCH, PLLC, Raleigh, North Carolina, for Appellants. Robert J. Higdon, Jr., United States Attorney, G. Norman Acker, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before KING, AGEE and THACKER, Circuit Judges.
Dismissed by published opinion. Judge Agee wrote the opinion, in which Judge King and Judge Thacker joined.
The Capitol Broadcasting Company and seven other media entities (collectively "the Media Entities") appeal from the district court's denial of their motion to intervene and in support of unsealing and vacating non-disclosure orders entered in two cases that were pending before that court. After briefing in the appeal concluded, the district court unsealed both cases and lifted the non-disclosure orders. We requested supplemental briefing on whether these changed circumstances rendered the appeals moot. Having considered the parties' arguments, we hold that the district court's recent orders in the underlying proceedings have rendered the Media Entities' appeal moot. Accordingly, we lack jurisdiction and therefore dismiss the appeal.
In 2018, the U.S. Department of Justice subpoenaed millions of voter registration records maintained by the North Carolina State Board of Elections ("the State Board"), forty-four county boards of elections ("the County Boards"), and the North Carolina Division of Motor Vehicles. The subpoenas were issued in the U.S. District Court for the Eastern District of North Carolina, referenced the U.S. Attorney's Office for that district, and indicated they were related to grand jury proceedings. The subpoenas were initially public and reported in the press, including by some of the Media Entities' news outlets. See, e.g. , Gary D. Robertson, "Investigators seek massive North Carolina voting records," Associated Press (Sept. 5, 2018) https://tinyurl.com/pjua9hbx (saved as ECF opinion attachment 1); Brian Murphy, "ICE demands ‘exhaustive’ voting records from North Carolina," The News & Observer (Raleigh, N.C.) (Sept. 5, 2018), 2018 WLNR 27155072; see also Richard Fausset & Michael Wines, "Justice Dept. Demands Millions of North Carolina Voter Records, Confounding Elections Officials," Int'l N.Y. Times (Sept. 6, 2018), 2018 WLNR 27311309. Soon thereafter, the State Board publicly announced it would challenge the subpoenas. E.g. , Gary D. Robertson, "North Carolina elections board to fight federal subpoenas," Associated Press (Sept. 8, 2018) https://tinyurl.com/3a3ejrkm (saved as ECF opinion attachment 2); Brian Murphy, "Fight ICE voting records subpoenas, NC elections board says," The News & Observer (Raleigh, N.C.) (Sept. 7, 2018), 2018 WLNR 27413400.
The State Board also prepared to respond to the subpoenas, and in February 2019, it provided publicly accessible advice to the County Boards about how to preserve records that may need to be disclosed. E.g. , N.C. State Bd. of Elections, Numbered Memo 2019-01 Re: Response to Subpoenas Issued by the U.S. Attorney's Office for the Eastern District of North Carolina (Feb. 6, 2019), https://s3.amazonaws.com/dl.ncsbe.gov/sboe/numbermemo/2019/Numbered%20Memo% 202019-01_Response%20to%20Subpoenas%20Issued%20by%20the%20U.S.%20Attorn ey%E2%80%99s%20Office%20for%20the%20Eastern%20District%20of%20North%20 Carolina.pdf (saved as ECF opinion attachment 3); N.C. State Bd. of Elections & Ethics Enf't, Numbered Memo 2018-09 Re: Preservation of Documents from 2016 General Election and Ballot Secrecy (Sept. 7, 2018). Three months later, the General Counsel for the State Board emailed the County Boards requesting that they conduct local searches for records responsive to the subpoenas and upload scanned copies to a secure database ("the May 2019 email").1
A week after the May 2019 email was sent, certain of the Media Entities submitted public records requests to the State Board seeking the records described in or submitted in response to the email. Discussions between them followed, but the Media Entities soon determined that the State Board would not voluntarily produce the requested documents.
The Media Entities then filed (and later amended) in September 2019 a verified complaint, petition for writ of mandamus, and request for mediation in North Carolina state court against the chairman of the State Board and chairman of the Wake County Board of Elections ("the state public records request"). Put briefly, they sought a court order compelling production of or access to "the information referenced in the" State Board's May 2019 email. J.A. 28. Although the state litigation named only the State Board and Wake County Board of Elections (collectively "the Election Boards"), the Media Entities sought an order that would apply to "the defendants, and all similarly situated county boards of election." J.A. 29.
The Election Boards moved to dismiss for failure to state a claim and answered, attaching in support a December 2019 non-disclosure order entered in sealed proceedings in the U.S. District Court for the Eastern District of North Carolina. The unsealed order redacted the proceedings' case numbers and similarly listed the case caption only as In re Sealed Matter . The non-disclosure order explained, in full:
Because the district court proceedings in which the December 2019 non-disclosure order was entered were sealed, the Media Entities could not discover additional information about them on the court's electronic docketing system. After coordinating with the Clerk's Office for the Eastern District about how to file a motion in proceedings with unknown case numbers and names, the Media Entities first successfully moved for leave to move to intervene to challenge both the sealing order and December 2019 non-disclosure order. The district court's order granting that motion required that the Media Entities file their motion for leave to intervene under seal. The Media Entities then filed a sealed "Motion to Intervene and in Support of Unsealing Records and Vacating Gag Order," asking for permission to intervene "for the limited purpose of asserting and protecting their and the people's presumptive right of access to judicial documents and proceedings, as conferred by the First Amendment to the Constitution of the United States; Article I, §§ 14, 18 and 24 of the North Carolina Constitution ; and common law." J.A. 127. They argued that sealing the district court proceedings and filing "a seemingly indefinite gag order" served no compelling interest that would overcome their established rights to access both matters related to the district court cases and to gain access to the documents identified in their state public records request. J.A. 127–28. For these reasons, the Media Entities asked the district court (1) "to permit their intervention," (2) "to unseal the records in these cases and to order that all future filings in these cases will be made public[ ]" unless a specific need for sealing had been shown, (3) to conduct "all future hearings or proceedings in these matters" in open court, and (4) to "vacate the gag order" impeding their state public records request. J.A. 129, 145.
After the Government responded ex parte , the district court denied the Media Entities' motion to intervene. Its unsealed order explained,...
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