Newman v. Graddick

• Citation: 696 F.2d 796
• Decision Date: 05 January 1983
• Docket Number: No. 81-7886,81-7886
• Parties: 9 Media L. Rep. 1104 N.H. NEWMAN, et al., Plaintiffs-Appellees, v. Charles GRADDICK, Attorney General, etc., et al., Defendants-Appellees, The Advertiser Company, Movant-Appellant. Gust BIGG, et al., Plaintiffs-Appellees, v. Mac Sim BUTLER, etc., et al., Defendants-Appellees, The Advertiser Company, Movant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 796

696 F.2d 796

9 Media L. Rep. 1104

N.H. NEWMAN, et al., Plaintiffs-Appellees, v. Charles GRADDICK, Attorney General, etc., et al., Defendants-Appellees, The Advertiser Company, Movant-Appellant.

Gust BIGG, et al., Plaintiffs-Appellees, v. Mac Sim BUTLER, etc., et al., Defendants-Appellees, The Advertiser Company, Movant-Appellant.

No. 81-7886.

United States Court of Appeals, Eleventh Circuit.

Jan. 5, 1983.

Rushton, Stakley, Johnston & Garrett, Dennis R. Bailey, Montgomery, Ala., for movant-appellant.

Wm. J. Samford, Legal Advisor, M.R. Nachman, Jr., Montgomery, Ala., for Governor James.

Ralph I. Knowles, Jr., Tuscaloosa, Ala., Alvin L. Bronstein, Washington, D.C., Richard D. Shinbaum, Montgomery, Ala., Radney, Radney & Barnes, W. Scears Barnes, Jr., Alexander City, Ala., for Worley James, Nat. Prison Projects, Joe Hopper et al.

Appeal from the United States District Court for the Middle District of Alabama.

Before RONEY and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.

RONEY, Circuit Judge:

The Advertiser Company, the publisher of two Alabama newspapers, appeals the district court's denial of its petitions to copy certain judicial records and to gain access to hearings in this class action concerning unconstitutional overcrowding in Alabama prisons. We reverse.

A general familiarity with the procedural history of this case is necessary to understand our disposition of the jurisdictional and substantive issues. Brought by inmates in Alabama prisons, this class action resulted in injunctive relief followed by a consent decree requiring state officials to reduce the number of prisoners in county jails. When overcrowding worsened, plaintiffs moved for a court order directing the release of prisoners. In response to the prisoners' motion, the district court ordered the Department of Corrections to submit periodic lists of 250 prisoners "least deserving of further incarceration."

Soon thereafter, The Birmingham News Company wrote to the Department of Corrections and the district judge requesting copies of the lists. The Department responded that it could not release the lists without the permission of the judge who also denied the newspaper's request. In his reply letter, the judge voiced his fear that publication of the lists could cause unrest among prisoners whose hopes for early release might be falsely raised and could disrupt the smooth operation of his office by producing a barrage of telephone calls and letters.

When The Birmingham News Company and The Advertiser Company filed formal applications to inspect and copy the lists, the court held a hearing at which the Commissioner of the Department of Corrections testified. Although he stated that publication could result in disturbances in prisons, he refused to term the likelihood of unrest as greater than a "possibility." The Commissioner also acknowledged that the actual publication of the first list, which The Birmingham News Company had obtained through some undisclosed source, had not caused any problems among inmates. Nonetheless, the district court denied the newspapers' applications.

The court did offer, however, to allow the media to inspect the lists if they promised not to publish them. Declining the offer, The Advertiser Company filed a second application to inspect and copy the lists as well as an application to be granted access to all further hearings in the case. In a brief order, which is the subject of this appeal, the court denied both applications, echoing its earlier fear of inmate unrest if the plan to release selected prisoners gained too much premature publicity. The order also denied an application by The Advertiser Company to attend hearings in a related suit concerning prison conditions in Montgomery County jails.

Prior to the order, the court had summarily closed a contempt hearing in the Montgomery litigation. After the order, the court followed the same approach, precluding without prior notice the public and press from attending an in camera hearing in the state prison litigation.

In the meantime, the court had begun to order the release of prisoners selected by the judge. The first release order, which became part of the record available to the public, provided the names of the 277 prisoners to be released. Although the order thus provided the press with the names of prisoners to be released, it did not include the lists submitted by the Department of Corrections, which may have included more, less or different names.

Prior to state compliance with a second release order, this Court ruled that the district court had exceeded its authority in selecting inmates to be released from prison. The Court reasoned that the district court should enforce a consent decree requiring reductions in prison overcrowding through its contempt power. Newman v. Alabama, 683 F.2d 1312 (11th Cir.1982).

While that decision terminated the district court's release program, the problem of press and public access still persists in the litigation. In November, after this Court heard oral argument in this appeal, the district court denied without opinion a motion by The Advertiser Company to attend a "pretrial" hearing. On an emergency motion to this Court, we ordered the district court to "conduct no further proceedings in this case except in open court to which public and press have access unless a hearing is held and findings and reasons for closure of any particular proceeding are set forth in an appropriate manner and certified to this Court for emergency review."

Since neither party has argued either the standing of The Advertiser Company, not a party to the underlying litigation, or appealability of the district court orders, we need not tarry long with those two points. This Court has upheld the press's standing to seek access in suits to which it is not a party. United States v. Gurney, 558 F.2d 1202, 1206 (5th Cir.1977), cert. denied sub nom., Miami Herald Publishing Co. v. Krentzman, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978). See Note, All Courts Shall Be Open: The Public's Right to View Judicial Proceedings and Records, 52 Temp.L.Q. 311, 348 (1979). Cf. United States v. Cianfrani, 573 F.2d 835, 845 (3rd Cir.1978) (upholding standing of press as intervenors). Although the rights asserted by The Advertiser Company are also enjoyed by the general public, the newspaper publisher has suffered a "distinct and palpable" injury since its reporters have requested and been denied access. See United States v. Cianfrani, 573 F.2d at 845-46.

While the litigation before the district court has not ended, we have held orders denying press access in ongoing litigation appealable under the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). United States v. Gurney, 558 F.2d at 1207. The denial of review until the district court proceedings are concluded could irreparably harm the press's ability to cover contemporaneously judicial proceedings of significant public interest. See Soto v. Barcelo (In re San Juan Star Co.), 662 F.2d 108, 112-13 (1st Cir.1981); United States v. Cianfrani, 573 F.2d at 845.

A defendant appellee does argue the appeal should be dismissed under the mootness doctrine, asserting that "the lists are of no use to the Advertiser at this point." In United States v. Gurney, 558 F.2d at 1207, we held that even after a trial had concluded, orders denying access presented a controversy capable of repetition yet evading review because the underlying litigation will almost always terminate before the appellate court hears the case. See also Globe Newspaper Co. v. Superior Court, --- U.S. ----, ---- - ----, 102 S.Ct. 2613, 2617-18, 73 L.Ed.2d 248, 254-55 (1982). In this appeal particularly, mootness is no bar to review for several reasons: First, the underlying litigation has not terminated and shows no signs of terminating in the near future. Second, there is every indication that the district court plans to maintain its policy of excluding from time to time the public and press from court proceedings. Third, The Advertiser Company still desires to review the lists to evaluate the type of prisoners included and the accuracy of the information contained thereon. While the list of prisoners actually released apparently has been made available, the lists provided by the Department of Corrections for the judge's use in determining whom to release have not been. Fourth, The Advertiser Company seeks the right to attend all future hearings or judicial proceedings in these cases regardless of whether they involve the release of prisoners.

On the merits of the issue before us, we start with the United States Supreme Court's discussion of the constitutional right of the press and public to attend criminal trials in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Although no opinion commanded a majority, seven justices agreed that the public has such a right. The Supreme Court has recently reaffirmed the Richmond Newspapers holding. Globe Newspaper Co. v. Superior Court, --- U.S. ----, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982).

The question is whether Richmond Newspapers applies in this case, a civil case, and to these proceedings which are "post-trial" or "pretrial", not the trial itself. The various opinions in Richmond Newspapers and the majority opinion in Globe Newspaper are helpful. Tracing the long history of open trials in Anglo-American jurisprudence, Chief Justice Burger's plurality opinion in Richmond Newspapers characterized a trial courtroom as "a public place where the people generally--and representatives of the media--have a right to be present...." 448 U.S. at 578, 100 S.Ct. at 2828. "What transpires in the courtroom is public property." Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947).

The Supreme Court has emphasized that open judicial...