Reed v. Bernard
| Decision Date | 29 September 2020 |
| Docket Number | No. 20-1632,20-1632 |
| Citation | 976 F.3d 302 |
| Parties | Merry REED; Philadelphia Bail Fund v. Francis BERNARD Arraignment Court Magistrate Judges; Sheila Bedford; Kevin Devlin ; James O'Brien; Cateria McCabe; Robert Stack in Their Official Capacities; President Judge Patrick Dugan in His Official Capacity; Sheriff of Philadelphia Francis Bernard, Sheila Bedford, Kevin Devlin, James O'Brien, Cateria McCabe and Robert Stack, Appellants |
| Court | U.S. Court of Appeals — Third Circuit |
This matter comes on before this Court on the appeal of defendant-appellants Arraignment Court Magistrate Judge Francis Bernard, et al. ("appellants" or the "Arraignment Magistrates"). Appellants appeal from the District Court's February 25, 2020 Order granting summary judgment in favor of appellee Philadelphia Bail Fund ("appellee" or the "Bail Fund") and holding that certain state and local rules precluding verbatim recording of bail proceedings violate the First Amendment. For the reasons that follow, we will reverse.
An individual arrested1 in Philadelphia typically is brought before an Arraignment Court Magistrate (hereinafter, "bail magistrate") at the City's Criminal Justice Center for a preliminary arraignment (hereinafter, "bail hearing").2 Bail hearings may be held twenty-four hours per day, seven days per week, three-hundred and sixty-five days per year. On average, each bail hearing lasts approximately four minutes.
At the bail hearing, the bail magistrate hears oral argument from the prosecutor and defender, considers certain statutory factors and biographical information, and, if appropriate, sets bail. If an arrestee seeks review of the bail magistrate's decision, an emergency municipal court judge is available to conduct an immediate de novo review by telephone.
The bail hearings are open to the public, but transcripts of the hearings are not made and audio recordings are not available to the public.3 Following the bail hearing, however, the public may access and obtain copies of court documents related to the hearing, including the bail bond, the criminal complaint, the bail hearing subpoena, and a bail appeal report if the arrestee appealed. Those documents, however, do not include information such as the parties’ arguments and the bail magistrate's reasoning for his or her decision.
The appellee Bail Fund is a nonprofit organization that seeks to enforce what it regards as justice within Philadelphia's bail system. Among other things, the Bail Fund sends volunteers into Philadelphia bail hearings to observe and report on the proceedings and uses information volunteers compile to produce public reports and educate Philadelphia citizens and government officials.
The Bail Fund avers that "[i]ts volunteers take extensive notes on the proceedings but the rapid, back-to-back, jargonfilled nature of the hearings makes it impossible for them to document every point or word exchanged." (Bail Fund ("BF") Br. at 6.) Because of that limitation, it sought permission to create its own audio recordings of bail hearings. The President Judge of the Philadelphia Municipal Court denied that request, noting that state rules prohibit the public from recording bail hearings.
Subsequently, the Bail Fund initiated this action, raising an as applied First Amendment challenge to the following three rules (hereinafter and collectively, the "challenged Rules"): Pennsylvania Rule of Criminal Procedure 112(C) ; Pennsylvania Rule of Judicial Administration 1910(B); and Philadelphia Municipal Court Arraignment Court Magistrate Rule 7.09.4
The District Court in a comprehensive opinion granted summary judgment in the Bail Fund's favor, holding that the challenged Rules infringed on the Bail Fund's First Amendment right of access to the bail hearings so long as the Philadelphia Municipal Court did not make official audio recordings or transcripts of the hearings available to the public. Consequently, it ordered that the Bail Fund must be allowed to audio-record bail hearings so long as the Philadelphia Municipal Court did not create publicly available transcripts or audio recordings of those proceedings.
The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court's summary judgment ruling. See, e.g., Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010).
The issue before this Court is whether the challenged Rules as applied to the Bail Fund impede its First Amendment right of access to Philadelphia bail hearings by precluding the Bail Fund from obtaining a verbatim record of those proceedings. The Arraignment Magistrates argue there is only a constitutional right of access to courtroom proceedings and documentation resulting from those proceedings, not a right to make audio recordings of courtroom proceedings. Further, they contend that because the states have the freedom to make laws pursuant to their own policy choices, the Pennsylvania court system was within its right to prohibit audio recordings. (See Arraignment Magistrates ("AM") Br. at 19.) Thus, per the Arraignment Magistrates, the Bail Fund's constitutional right of access has been satisfied because it has the ability to attend and observe bail hearings; take notes at those hearings; obtain bail information and the criminal complaint immediately after a bail hearing; access online dockets, which include bail information; and obtain bulk data5 pertaining to the bail hearings. Accordingly, the Arraignment Magistrates contend that the Bail Fund seeks to extend the First Amendment right of access into a right to make or require the creation of audio recordings, but that "[j]ust because some states make different policy choices" the claimed First Amendment right does not exist. (AM Reply Br. at 1; see also AM Br. at 19-20.)
The Bail Fund argues that it does not seek an "unfettered right" to audio-record all judicial proceedings; rather, it only seeks to audio-record bail hearings because those hearings occur off-the-record and there is no verbatim documentation of those proceedings available to them. (BF Br. at 2.) Per the Bail Fund, although its volunteers are permitted to take handwritten notes, "it [is] impossible for [the volunteers] to document every point or word exchanged" during the bail hearings. (BF Br. at 6.) It further avers that the records available to it, such as bulk data information, are inadequate because they lack essential information, such as the parties’ arguments and the bail magistrate's reasoning for his or her decision. Thus, the Bail Fund contends that the challenged Rules are unconstitutional because they prohibit it from obtaining a verbatim record of the bail proceedings. We disagree.
At the outset of our analysis we observe that it is undisputed that the Bail Fund is able physically to attend and take handwritten notes at bail hearings. In fact, the Bail Fund concedes that "[a]ll of the [bail] hearings are held in open court and members of the press and the public are free to attend and take notes on the proceedings." (BF Br. at 5.) Further, the parties agree that the First Amendment right of access to the courtroom includes a right to access to documents resulting from those court proceedings. See United States v. Antar, 38 F.3d 1348, 1361 (3d Cir. 1994) ().
What is in dispute is whether the right of access includes an affirmative requirement that the judiciary create or allow the creation of verbatim records of its proceedings. We hold that precedent does not mandate that it does; rather, the law takes a more modest approach and requires that judicial records—assuming they exist—are generally available to the public. Cf. Nixon v. Warner Comm'cs, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1312, 55 L.Ed.2d 570 (1978) ().6 Here, by announcing a requirement that the Philadelphia Municipal Court either create and release verbatim recordings or allow the Bail Fund to make its own audio recordings, the District Court broadened the First Amendment right of access.7 But neither the Constitution nor judicial precedent provides for such a requirement, and if we established such a requirement, we would be making new law.
The Supreme Court's and our decisions in Antar and Press-Enterprise do not alter our decision. See Antar, 38 F.3d 1348 ; Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S. Ct. 2735, 92 L.Ed.2d 1 (1986). In Antar, we held that, assuming there are transcripts of a proceeding, the First Amendment right of access extends equally to the transcripts as well as the courtroom proceedings giving rise to those transcripts. See 38 F.3d at 1361. In Press-Enterprise, the Supreme Court similarly determined that the district court erred in sealing the transcript of a criminal preliminary hearing. See 478 U.S. at 13, 106 S. Ct. at 2743. These cases, which concern restricted access to documentation already in existence, are inapposite to the issue currently before us which concerns the creation of documents or audio recordings. To be sure, we are not suggesting that the Bail Fund would not typically be entitled to transcripts of bail hearings had the Philadelphia Municipal Court created them; rather, we hold today that the First Amendment does not mandate either their creation or the allowance or their creation. The same principle presumably applies to mandating the creation of audio recordings.
Nor does our holding in Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177 (3d Cir. 1999) stand for the proposition that courts must create or allow the creation of verbatim records of their proceedings. In Whiteland Woods, we considered whether a real...
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