Marshall v. Bramer
| Decision Date | 26 August 1987 |
| Docket Number | K,K-1,K-50,No. 86-5633,86-5633 |
| Parties | , 8 Fed.R.Serv.3d 873, 23 Fed. R. Evid. Serv. 371 Robert MARSHALL and Martha Marshall, Plaintiffs-Appellees, v. Carl Ray BRAMER, Billy Wayne Emmones, John Doe, and unknown defendantsthroughu Klux Klan members and others who participated in the events set out in this complaint and those whose names are unknown at this time, Defendants, Alex Young, Nonparty-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Mark L. Miller (argued), Miller and Meade, Louisville, Ky., Don C. Meade, for nonparty-appellant.
Phillip J. Shepherd, Shepherd, Shepherd & Childers, Frankfort, Ky., Morris S. Dees, Jr., Montgomery, Ala., J. Richard Cohen, Alexander R. Sussman (argued), New York City, for plaintiffs-appellees.
Samuel H. Fritschner, Louisville, Ky., for amicus curiae, American Civ. Liberties Union of Kentucky.
Before LIVELY, Chief Judge; RYAN, Circuit Judge; and PORTER, Senior District Judge. *
This is an appeal by nonparty appellant Alex Young from civil contempt orders entered after he refused to produce a list of members of a Ku Klux Klan group, 110 F.R.D. 232. Plaintiffs Robert and Martha Marshall sought the list as a part of the discovery process in their civil rights case against those who twice firebombed their home. 1 We affirm the contempt orders.
Sylvania is a small community of seventy-five homes located near Louisville in Jefferson County, Kentucky. Blacks who have lived there in the past have been targets for harassment. No blacks were living there in 1985 until the Marshalls bought a house and attempted to move into it. After word was out in the community that a black family had bought a house in Sylvania, but before the Marshalls moved in, there was a Ku Klux Klan meeting in Jefferson County. At about this same time, Klan members posted some one hundred fifty "Join the Klan" signs and distributed hundreds of Klan leaflets in Sylvania.
The first night Mrs. Marshall spent in her new home she was alone with her two children. Around bedtime, she saw a pickup truck drive by and heard someone shout "nigger." Later, about 3:00 a.m., a firebomb was thrown into the house, causing a great deal of damage.
Defendants Bramer and Emmones pled guilty to the firebombing. It is not clear what connection, if any, these two have with the Klan, but Klan emblems were found in the Marshalls' front yard the morning after the attack.
The first arson occurred on July 29, 1985. The Marshalls filed a civil rights action under 42 U.S.C. Secs. 1985(3) & 1986 (1981) on August 22, 1985. On August 24, 1985, a Ku Klux Klan rally was scheduled to be held at the home of the brother-in-law of one of those who pled guilty to the first arson. This home was two blocks from the Marshalls' home. A few hours before the rally, the remains of the Marshalls' home were again firebombed. At the rally, which was attended by the Imperial Wizard of the Invisible Empire of the Ku Klux Klan, one speaker promised that no blacks would be permitted to live in Sylvania.
Appellant Young, at the time of the first arson, was a Jefferson County police officer. Soon after that first arson, a Louisville television station broadcast a story exposing him as a member of the Ku Klux Klan. Apparently in response, Young was transferred on August 1, 1985, from his job as a helicopter pilot to the police property room. After filing suit, the Marshalls noticed Young's deposition and served him with a subpoena duces tecum requiring him to bring a list of members of the Confederate Officers Patriot Squad (COPS) or the Ku Klux Klan. Young's efforts to quash the subpoena were unsuccessful, but a protective order was entered. 2
Young was deposed on November 5, 1985. He said his involvement with the Ku Klux Klan had long been known and tolerated in the police department, and that he had been an officer in the Klan, but had resigned on July 23, 1985. He said the COPS was never an organization in its own right, but only a post office box where he received Klan correspondence and information. He admitted that he raised money for the Klan and kept it in a bank account under the COPS name. He admitted having attended the Klan meeting which preceded the first arson, but claimed that his only knowledge about the perpetration of that crime was a second-hand story to the effect that it was not racially motivated, but was done on a dare by some rowdy kids. Nonetheless, Young admitted to having contacted Hawkins, the police sergeant assigned to investigate the first arson, to assure him that there had been no Klan involvement in that crime.
Young's lawyer advised him not to produce the membership list or to reveal any of the names that were on it. Accordingly, Young admitted that he had access to a list of Klan members, possibly forty names and addresses, and that probably more than half of these were law enforcement officers, but he refused to produce the list itself.
After this deposition was taken and sealed, plaintiffs relied upon information in it to draft pleadings which they filed with the court. This limited use of information from the deposition was apparently permitted under the terms of the first protective order. The sensational news that a couple of dozen local police were in the Ku Klux Klan was soon reported in the local media. Young was then fired from the police force.
In March of 1986 Young was again ordered to produce the membership list, subject to a more stringent protective order. The second order was carefully designed to preserve the anonymity of nonparties whose names might appear on the membership list. When Young refused to produce the list, the court held him in contempt. This court stayed the $1,000 per day fine until Young's appeal of the production order could be resolved.
In order to help resolve the question of whether the Marshalls are entitled to discover Young's list of Jefferson County Ku Klux Klan members, the district court took judicial notice of:
findings and rulings contained in [five] cases in which the Ku Klux Klan is identified as a violence-prone group with a history of harassing, intimidating, and injuring blacks and members of other minority groups ... [and] of criminal cases in which individual Klan members were found or pleaded guilty to numerous crimes, many involving racial violence.
Federal Rule of Evidence 201, which treats judicial notice, "governs only judicial notice of adjudicative facts." Fed.R.Evid. 201(a). Adjudicative facts are facts about the parties or the issues to which the law is applied, usually by the jury, in the trial of a case. Discovery is plainly designed by the Federal Rules of Civil Procedure as a process distinct from the trial process. The scope of discovery is not limited to admissible evidence, but encompasses "any matter, not privileged, which is relevant to the subject matter involved in the pending action." Fed.R.Civ.P. 26(b)(1). A discovery request is generally unobjectionable "if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Id.
In taking judicial notice of the nature of the Ku Klux Klan, the judge here was not finding the adjudicative facts of this case. He simply determined that it is reasonable of the plaintiffs to suppose that the Klan's membership list would help them discover who firebombed their home. If this same information about the nature of the Klan were judicially noticed at trial and employed as circumstantial evidence tending to prove, for example, the liability of a particular Klan member, then Rule 201 would apply. The rule does not apply here.
This is not to say that a trial court's recourse to judicial notice in passing on a discovery motion is unreviewable. Discovery is not made subject to the same evidence rules that would apply at trial, but Rule 201 does supply a well-accepted standard for judicial notice, and radical departure from this standard could amount to an abuse of the trial court's discretion in overseeing the discovery process. However, we perceive no such abuse of discretion here.
Rule 201 provides in part:
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Fed.R.Evid. 201(b). The nature of the Ku Klux Klan, and its historic commitment to violence against blacks in particular, is generally known throughout this country and is not subject to reasonable dispute. Although it is generally not appropriate to judicially notice findings of fact made in other cases, the essence of the finding here, at least with respect to the criminal cases, is simply that Klan members have been convicted of crimes of racial violence. This is a legal conclusion, not a mere finding of fact, and the court records resorted to here may properly be viewed as "sources whose accuracy cannot reasonably be questioned."
Young objects not simply to the judicial notice, but to the inference the court drew, that, because the Klan has historically and nationally been violent, it is likely that a particular local Klan group has taken part in violent acts. This inference may well be impermissible if offered at trial to establish liability of a particular Klan member for a particular violent act, especially if the other evidence tending to connect that individual with the act were insubstantial. But here the inference has been drawn in the discovery process, and used in conjunction with specific facts already discovered tending to suggest a connection between the Klan and the acts of racial violence alleged in the complaint. The district court's use of judicial notice was unobjectionable.
Young contends that there is insufficient evidence of Ku Klux Klan...
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