Fourth Circuit contempt reversals underscore access right

I may appear before Judge Britt someday, so I will give a more restrained – if less interesting – account of the Fourth Circuit’s rulings in the Kirsten Mitchell/Cory Reiss cases than Paul O’Connor. Any of you who have read this column over the past two years knows the saga of Kirsten Mitchell. She is the Wilmington Star reporter whom Judge Britt held in criminal and civil contempt and fined $1,000 personally and $500,000 jointly with the New York Times Co. for re-opening an already opened envelope, reading its contents (the purportedly sealed $36 million settlement reached between Conoco and 178 plaintiffs suing Conoco), and disclosing it to the world. Cory Reiss, the Star’s reporter primarily covering the case, was also held in civil contempt for his refusal to disclose the identity of two confidential sources who disclosed to him the same $36 million figure. Reiss was ordered to ‘fess up or go to jail. He chose to go to jail — at least in theory. In reality, his lawyers asked the court to hold the sentence at bay pending an appeal to the Fourth Circuit Court of Appeals. Kirsten Mitchell and Cory Reiss both are now free, un-convicted and, as Paul O’Connor writes, have stories to tell the children. For the rest of us, the legal gist of the Fourth Circuit’s opinions, which should be read together, is significant.

In the two years since Kirsten was held in contempt, I repeatedly have told reporters, “If you legally find out truthful information, you can print it,” only to be asked, “But what about Kirsten Mitchell?” In analyzing Kirsten’s case, the Fourth Circuit made three important rulings. First, the court found that there was no “definite, clear, [and] specific” decree that Kirsten violated. The court essentially found that the prosecutor played three-card-Monty in identifying the decree that Kirsten purportedly violated, arguing at the trial court level that the decree was the warning noted on the front of the envelope – which Kirsten testified she didn’t see until after looking inside the envelope because she was review documents oldest-to-newest – and arguing at the Fourth Circuit that the decree was the two-page sealing order placed inside the envelope. Second, the Fourth Circuit found that “no reasonable trier of fact could conclude that Mitchell acted with the contumaciousness necessary to support a conviction for criminal contempt.” In other words, the Fourth Circuit said that nobody could reasonably conclude that Kirsten’s actions were willful, even though Judge Britt apparently did conclude that. The court wrote, “the above sequence of events all but confirms that Mitchell acted wholly innocently, and certainly innocently insofar as the law is concerned.” With that, the Fourth Circuit overturned Kirsten Mitchell criminal contempt conviction.

It is important to note that the court emphasized that its decision rested in large part on the fact that “the ‘decree’ or order on which [the contempt ruling] was based was not even a court order or ‘decree’ at all.” The opinion reiterates that had there been an actual decree or order, the ruling would not have been the same. “The mere invalidity or unconstitutionality of the underlying court order is insufficient to warrant overturning a criminal contempt conviction.” In other words, if there is an order, you must abide by it until it’s overturned, even if it is unconstitutional.

Finally, the Fourth Circuit held in Kirsten’s civil contempt case that the trial court’s acquiescence to the request of the parties to seal the settlement agreement violated the Fourth Circuit’s established requirements for sealing a document. The court noted that before a court can seal court documents, the court must (1) provide public notice of the request and afford an opportunity to hear any objections to the sealing; (2) consider less drastic alternatives; and (3) providing specific factual findings to support the sealing. Judge Britt did none of these. The parties came forward with a request that the court seal the settlement and place it in the court file, and Judge Britt agreed to do that. No notice. No hearing. No findings. No good, according to the Fourth Circuit. Therefore, the Fourth Circuit ruled that Kirsten Mitchell could not be held in civil contempt of court.

Meanwhile, Cory Reiss was packing his toothbrush to go to jail for refusing to “out” his anonymous sources. Conoco requested the trial court to order Cory to disclose his sources, saying that if one of the plaintiffs had leaked the settlement amount in violation of the confidentiality order, Conoco should not be required to pay the full settlement figure. The judge initially recognized the reporter’s privilege and said that the parties had not demonstrated that there were no alternative sources for the information. Conoco’s lawyers sent interrogatories to all the adult plaintiffs and examined under oath the five who said they had spoken with Cory. The court questioned all the court personnel who had access to the settlement figure. Nobody confessed to having been the leaker. At that point, Judge Britt ordered Cory to reveal his sources; Cory refused to do so; and Judge Britt held him in contempt. Cory obtained a stay of the contempt ruling pending appeal to the Fourth Circuit.

Under the traditional, three-part test, a subpoenaing party must demonstrate that the information sought: (1) Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought; (2) Cannot be obtained from alternate sources; and (3) Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought. The Fourth Circuit’s analysis of Cory’s appeal focused on the third prong of the privilege, the requirement that there be a compelling need for the information. The Fourth Circuit noted that Judge Britt’s interest in finding out Cory’s sources was to determine who had violated his order sealing the settlement amount. However, due to the companionate ruling that Judge Britt did not go through the proper steps of notice, narrow tailoring, and specific findings before sealing the settlement agreement, the Fourth Circuit found, “the sealing order is invalid. Enforcement of an invalid confidentially order cannot serve as a compelling interest justifying disclosure of a reporter’s confidential sources.” Accordingly, the Fourth Circuit overturned Cory Reiss’ contempt conviction.

The Fourth Circuit’s opinions in the Mitchell and Reiss cases underscore that Circuit’s continued commitment to the right of the public to have access to judicial proceedings, to the free flow of information and to core First Amendment principles. The next time a reporter asks me, “But what about Kirsten Mitchell?” I’ll answer that she had her day in court and came out smelling like a rose!