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Contempt rulings against two reporters reversed

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    NMU         NORTH CAROLINA         Secret Courts         Jul 7, 2000    

Contempt rulings against two reporters reversed

  • Civil and criminal contempt findings over newspaper reports of a sealed settlement agreement were thrown out by a federal appellate court.

Contempt of court orders against the Wilmington Morning Star and two of its reporters were overturned by the U.S. Court of Appeals in Richmond (4th Cir) on July 6, because a sealing order at the center of the controversy was vague and improperly granted.

The contempt orders arose from the newspaper’s reports on a sealed settlement agreement between an oil company and residents of a neighborhood whose water supply was contaminated by the company.

Reporter Kirsten Mitchell and the Morning Star were held in civil and criminal contempt in January 1998 for reporting details from a copy of the settlement that Mitchell saw in a court file. In a second incident, Reporter Cory Reiss was held in civil contempt in October 1998 for refusing to identify the confidential sources who gave him details of the settlement. Reiss was found not guilty of criminal contempt before the trial court.

Civil contempt findings are open-ended, and only expire when the subject agrees to cooperate with the court, while criminal contempt convictions are meant as a penalty for disobeying a court order. A federal prosecutor brought the criminal contempt charges, but the court was forced to appoint a special prosecutor to try the cases after Attorney General Janet Reno refused to approve the prosecution of the journalists.

While the journalists prevailed on all counts, the decisions turned on the validity of the lower court’s order sealing the confidential settlement.

The civil contempt charges against Mitchell and the newspaper were reversed because the judge’s order sealing the settlement did not follow the procedures required before sealing settlement and was therefore invalid, the appellate court found.

“Despite the Morning Star’s demonstrated interest in the case, no public notice of the parties’ joint motion to seal the settlement agreement was given; no opportunity for interested parties to object was provided; there is no indication that the district court considered less drastic alternatives to sealing the agreement; and the court’s sealing order did not identify any specific reasons” justifying the seal, the appellate court held.

Because the sealing order was not valid, the trial court had no “compelling interest” in forcing Reiss to identify who violated the order, according to the appellate court. The court found that Reiss used “ordinary reporting methods” to uncover the settlement amount and publish it in the Morning Star.

The criminal contempt charges against Mitchell were reversed because the court decree was not sufficiently specific to inform her that her actions would violate it, the appellate court found. In addition, prosecutors had not shown she acted with the required “contumaciousness,” or willful disobedience, to be criminally prosecuted.

Mitchell had learned of the settlement’s terms when she went to the District Court clerk’s office at the request of her editor and asked to see all documents filed since the settlement agreement. The clerk gave Mitchell the file, but removed one envelope, saying it was under seal. But another envelope in the file contained the settlement agreement. Mitchell testified that it was not until after reading through the settlement and putting it back in the envelope that she saw a notice on the reverse side saying the envelope should be opened only by the court.

The Court of Appeals held that the words on the front of the envelope supposedly constituting the court’s decree did not apply to the disclosing of the actual terms of the settlement. The appellate court also determined that the statement on the envelope was not actually a decree of the court, as the warning had been placed on the face of the envelope by one of the oil company’s paralegals, not court personnel.

(Ashcraft v. Conoco, Media Counsel: Floyd Abrams, New York) JM

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