Mid-IL Newspapers v. Jessup, Goble

In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4147

GOBLE JESSUP,

Plaintiff-Appellee,

v.

ROBERT LUTHER, JAMES SHAFFER, individually
and in his official capacity, DALE ADAMS,
individually and in his official capacity, et
al.,

Defendants-Appellees.

APPEAL OF:
MID-ILLINOIS NEWSPAPERS, INCORPORATED,

Proposed Intervenor.

Appeal from the United States District Court
for the Central District of Illinois.
No. 97 C 2241--David G. Bernthal, Magistrate Judge.

Argued May 12, 2000--Decided August 31, 2000

Before RIPPLE, MANION and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. Mid-Illinois Newspapers,
Inc. (the "Newspaper") moved to intervene in this
employment dispute for the purpose of contesting
the district court’s decision to seal the
settlement agreement reached between the
litigants. The district court denied the
Newspaper’s motion to intervene, and the
Newspaper timely appealed. For the reasons set
forth in the following opinion, we reverse the
judgment of the district court and remand for
further proceedings consistent with this opinion.

I
BACKGROUND
A.

This action originated from an employment
dispute between Goble Jessup and Lake Land
College, its president and board of trustees
(collectively the "Parties"). Jessup alleged that
Lake Land College, a public community college in
Illinois, had terminated his employment in
violation of the Constitution and other federal
laws. Two years later, as a result of a court-
conducted settlement conference, Jessup reached a
settlement agreement (the "Settlement Agreement")
with the defendants. One of the terms of the
Settlement Agreement was a confidentiality clause
that prohibited the disclosure of any information
concerning the terms of settlement. Consistent
with the Parties’ agreement, the district court
entered the following order:
All matters pertaining to the settlement are
confidential. Accordingly, all documents related
to the settlement are to be sealed. This will
include any documents submitted by the parties
other than the order of dismissal. The transcript
of proceedings on September 3, 1999, filed
September 4, 1999, shall likewise be sealed.
Minute Entry of September 15, 1999.

Following the entry of this order, the Newspaper
filed a motion to intervene pursuant to Rule 24
of the Federal Rules of Civil Procedure; the
motion was not accompanied by a supporting
memorandum of law, as required by local rule. The
Parties opposed the motion to intervene.

B.

In its disposition of the motion, the district
court noted that the Newspaper had failed to file
a memorandum in support of its motion to
intervene and also had filed a reply memorandum
concerning the same motion, both in violation of
Central District of Illinois Local Rule 7.1
(B)(1). Despite this shortcoming, however, the
district court addressed the merits of the
Newspaper’s motion.

Looking first at the requirements for
intervention as of right under Federal Rule of
Civil Procedure 24(a)(2), the district court
determined that the Newspaper met three of the
four criteria for intervention as of right: (1)
the application was timely; (2) the Newspaper’s
interest would be impaired by disposition of the
action without the Newspaper’s involvement; and
(3) the Newspaper’s interest was not adequately
represented by one of the existing parties to the
action. The district court, however, found that
one crucial element was missing: the Newspaper
could not establish a direct and substantial
interest in the subject matter of the litigation.
The court concluded that the Newspaper’s claimed
interests, "rights of access to judicial records
and proceedings, as well as the conduct of the
public entity and public officials," was "a
general one and applies to any case filed in this
Court." R.47 at 3. Because the Newspaper’s
interests did "not extend to the employment
relationship" between the Parties, the district
court held that the Newspaper had "failed to
assert an interest in the lawsuit that would
justify its intervention as of right." Id.

The district court also concluded that the
Newspaper had not established a common question
of law or fact to justify permissive intervention
under Federal Rule of Civil Procedure 24(b)(2).
It stated:

The question of whether settlement should be
confidential is a question raised by the
[Newspaper]. However, the underlying case
involves only the rights and obligations of the
parties arising from the employment relationship
between the Plaintiff and Lakeland [sic] College.
There is no common question of law or fact.

Id.

Finally, the district court articulated the
policy consideration that, in its view, justified
the confidentiality order: the efficient
disposition of litigation through settlement. The
court noted that its ability to facilitate
settlement would be substantially hindered if it
could not guarantee confidentiality--a condition
that could be imposed if the Parties had chosen
extra-judicial settlement methods. According to
the district court, this interest, specifically
recognized by Congress in the Alternative Dispute
Resolution Act, 28 U.S.C. sec. 651 et seq.,
superseded any interest of the Newspaper to
access./1

The Newspaper timely appealed the denial of its
motion to intervene.

II
DISCUSSION
A.

The district court found, and the Parties argue
on appeal, that the Newspaper has not met the
requirements for intervention under Federal Rule
of Civil Procedure 24. Rule 24 provides in
relevant part:
Rule 24. Intervention

(a) Intervention of Right. Upon timely
application anyone shall be permitted to
intervene in an action: (1) when a statute of the
United States confers an unconditional right to
intervene; or (2) when the applicant claims an
interest relating to the property or transaction
which is the subject of the action and the
applicant is so situated that the disposition of
the action may as a practical matter impair or
impede the applicant’s ability to protect that
interest, unless the applicant’s interest is
adequately represented by existing parties.

(b) Permissive Intervention. Upon timely
application anyone may be permitted to intervene
in an action: (1) when a statute of the Unites
States confers a conditional right to intervene;
or (2) when an applicant’s claim or defense in
the main action have a question of law or fact in
common. When a party to an action relies for
ground of claim or defense upon any statute or
executive order administered by a federal or
state governmental officer or agency or upon any
regulation, order, requirement, or agreement
issued or made pursuant to the statute or
executive order, the officer or agency upon
timely application may be permitted to intervene
in the action. In exercising its discretion the
court shall consider whether the intervention
will unduly delay or prejudice the adjudication
of the rights of the original parties.
Fed. R. Civ. P. 24. With respect to Rule
24(a)(2), the Parties argue that the Newspaper
does not possess an interest relating to the
property or transaction which is the subject of
the action--an employment dispute./2
Furthermore, the Parties submit, the Newspaper
does not present a claim or defense that shares a
question of law or fact in common with the main
action, such that the Newspaper might be eligible
for intervention under Rule 24(b)(2). Because the
Newspaper does not articulate an interest
cognizable under the language of Rule 24, the
Parties conclude, the district court properly
denied the Newspaper’s motion to intervene. We
cannot accept this argument.

The right to intervene to challenge a closure
order is rooted in the public’s well-established
right of access to public proceedings. See Grove
Fresh Distribs., Inc. v. Everfresh Juice Co., 24
F.3d 893, 897 (7th Cir. 1994). Having roots in
both common law traditions and the First
Amendment, the right "serves to (1) promote
community respect for the rule of law, (2)
provide a check on the activities of judges and
litigants, and (3) foster more accurate fact
finding." Id. The recognition of the crucial role
of the public has led us to find that "the First
Amendment provides a presumption that there is a
right of access to proceedings and documents
which have historically been open to the public
and where the disclosure of which would serve a
significant role in the functioning of the
process in question." Associated Press v. Ladd,
162 F.3d 503, 506 (7th Cir. 1998) (internal
quotation marks and citations omitted).

In order to preserve the right of access, "those
who seek access to [sealed] material have a right
to be heard in a manner that gives full
protection to the asserted right." Id. at 507.
"[R]epresentatives of the press and general
public must be given an opportunity to be heard
on the question of their exclusion from the
proceedings or access to documents." Id. at 508
(internal quotation marks and citations omitted).
Thus, we have recognized intervention as the
logical and appropriate vehicle by which the
public and the press may challenge a closure
order. See, e.g., Associated Press, 162 F.3d at
507 ("In this circuit, we have intimated that the
most appropriate procedural mechanism by which to
accomplish this task is by permitting those who
oppose the suppression of the material to
intervene for that limited purpose."); Grove
Fresh, 24 F.3d at 895 ("It is apparent, however,
that intervention is the procedurally appropriate
course for third-party challenges to protective
orders."). This method not only guarantees the
public’s right to be heard, it also ensures that
"the issue [of closure will] be examined in a
procedural context that affords the court an
opportunity for due deliberation." Associated
Press, 162 F.3d at 507.

Although we have recognized the right to
intervene to challenge a closure order in the
civil context, see Grove Fresh, 24 F.3d at 895,
we previously have not characterized this
intervention in terms of the language of Rule 24.
Indeed, as one of our sister circuits has noted,
Rule 24, on its face, "would appear to be a
questionable procedural basis for a third-party
challenge to a confidentiality order." Equal
Employment Opportunity Comm. v. National
Children’s Ctr., Inc., 146 F.3d 1042, 1045 (D.C.
Cir. 1998). Rule 24(a) requires the proposed
intervenor to have an "interest relating to the
property or transaction which is the subject of
the action." Fed. R. Civ. P. 24(a)(2).
Alternatively, Rule 24(b) requires that the
proposed intervenor’s "claim or defense and the
main action have a question of law or fact in
common." Fed. R. Civ. P. 24(b)(2). The interest
we articulated in Grove Fresh and Associated
Press does not fit neatly within the literal
language of either section.

Nevertheless, every court of appeals to have
considered the matter has come to the conclusion
that Rule 24 is sufficiently broad-gauged to
support a request of intervention for the
purposes of challenging confidentiality orders.
See National Children’s Ctr., 146 F.3d at 1045
(collecting cases). As some of these courts have
explained, although there is ample justification
for the common fact or law requirement when the
proposed intervenors seek to become a party to
the action, "[t]here is no reason to require such
a strong nexus of fact or law when a party seeks
to intervene only for the purpose of modifying a
protective order." Beckman Indus., Inc. v.
International Ins. Co., 966 F.2d 470, 474 (9th
Cir. 1992); see also United Nuclear Corp. v.
Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir.
1990); Meyer Goldberg, Inc. v. Fisher Foods, 823
F.2d 159, 164 (6th Cir. 1987)./3 At least one
circuit has applied this broad nexus concept in
circumstances where, as here, a member of the
public or press seeks to challenge a
confidentiality order entered by the district
court. In these circumstances, the Third Circuit
has held that any party challenging a
confidentiality order "meet[s] the requirement of
Fed. R. Civ. P. 24(b)(2) that their claim must
have ’a question of law or fact in common’ with
the main action." Pansy v. Stroudsburg, 23 F.3d
772, 778 (3d Cir. 1994).

Mindful of the Supreme Court’s admonition that
we should avoid rigid construction of Rule 24,
see Missouri-Kansas Pipeline Co. v. United
States, 312 U.S. 502, 505-06 (1941),/4 we
believe that these circuits have employed sound
reasoning. Although the language of Rule 24 was
undoubtedly crafted principally for other
situations occurring more frequently in federal
litigation, we understand our sister circuits’
rationale for grounding the type of intervention
we have here in Rule 24(b) of the Federal Rules.
The language of the Rule certainly could be
fashioned more precisely to accommodate
situations such as the one before us.
Nevertheless, we cannot say that reliance on Rule
24(b) does violence to its intended purposes of
bringing before the court, in orderly fashion,
those whose legal interests will be directly and
substantially affected by the course of the
litigation.

Nor can we say that permitting intervention for
the purpose of deciding the confidentiality issue
impermissibly stretches the wording of the Rule.
Here, the Newspaper asserts a right directly and
substantially related to the litigation, a right
of access to court proceedings and documents born
of the common law and the First Amendment. A
necessary corollary to this principle is that
those who seek access to sealed proceedings or
documents "have a right to be heard in a manner
that gives full protection of the asserted
right." Associated Press, 162 F.3d at 507. The
public and the press must have "an adequate
opportunity, under the circumstances of the case,
to challenge [the] limitation by stating to the
court the reasons why the material should remain
subject to public scrutiny." Id. Therefore, when
a district court enters a closure order, the
public’s interest in open access is at issue and
that interest serves as the necessary legal
predicate for intervention. Similarly, from the
Parties’ perspective, their interest in the non-
disclosure of the settlement agreement is a
central aspect of this litigation. Although the
Parties take a very different view of the matter
of confidentiality, nevertheless, that
confidentiality is--in the language of Rule
24(b)(2)--a "question of law . . . in common"
between the Parties and the Newspaper.

In sum, the district court sealed a portion of
its proceedings and records pursuant to the
Parties’ request. When it took this action, the
Newspaper’s presumptive right to access was
implicated, and the Newspaper should have been
allowed to intervene for the limited purpose of
challenging the district court’s order./5

B.

The Parties urge us to consider the merits of
the closure issue. Specifically, the Parties
suggest that efforts by district courts to
mediate and settle disputes will be impeded and
that the confidential nature of employer-employee
relations will be called into question should the
district court be required to rescind the
protective order. These are, indeed, weighty
concerns. However, they are concerns that are not
properly before us at this time. As we stated in
Associated Press, "when a party has been
unsuccessful in its motion to intervene, it may
appeal only the order denying intervention." 162
F.3d at 506. Because only the order denying
intervention is before us today, we have no
occasion to consider the merits of either the
Newspaper’s or the Parties’ contentions
concerning the nondisclosure order. This will be
the task of the district court on remand./6

Conclusion

On remand, the district court shall grant the
Newspaper’s right to intervene and then proceed
to consider its right of access claim. We express
no opinion on the latter issue, which ought to be
determined in the first instance by the district
court. Accordingly, we reverse the district
court’s order denying the Newspaper’s motion to
intervene, and we remand for further proceedings
consistent with this opinion.

REVERSED and REMANDED

/1 Specifically, the district court quoted 28 U.S.C.
sec. 652(a), which states in pertinent part:
[E]ach district court shall, by local rule
adopted under section 2071(a), require that
litigants in all civil cases consider the use of
an alternative dispute resolution process at an
appropriate stage in the litigation. Each
district court shall provide litigants in all
civil cases with at least one alternative dispute
resolution process, including, but not limited
to, mediation, early neutral evaluation,
minitrial, and arbitration as authorized in
sections 654 and 658.

/2 The Newspaper does not contend that it possesses
an unconditional right to intervene pursuant to a
statute under Rule 24(a)(1) or a conditional
right to intervene pursuant to a statute under
Rule 24(b)(1).

/3 But cf. United States v. Kentucky Utilities Co.,
927 F.2d 252 (6th Cir. 1991) (holding that media
representative’s motion to intervene must be
evaluated under Rule 24(a)(2) because the
proposed intervenor was asserting a right to
discovery documents that were in the hands of
litigants, had not been filed with the court, and
were not subject to a protective order).

/4 In that case, the Missouri-Kansas Pipeline
Company sought to intervene in the modification
of a consent decree reached between the United
States and a competing gas and oil company,
Columbia Gas & Electric Corporation. The consent
decree had reserved certain rights for the
Missouri-Kansas Pipeline Company in order to
improve competition. Columbia Gas & Electric
argued, inter alia, that Rule 24 did not provide
a basis for intervention. The Court stated:

All of these arguments misconceive the basis of
the right now asserted. Its foundation is the
consent decree. We are not here dealing with a
conventional form of intervention, whereby an
appeal is made to the court’s good sense to allow
persons having a common interest with the formal
parties to enforce the common interest with their
individual emphasis. Plainly enough, the
circumstances under which interested outsiders
should be allowed to become participants in a
litigation is, barring very special
circumstances, a matter for the nisi prius court.
But where the enforcement of a public law also
demands distinct safeguarding of private
interests by giving them formal status in the
decree, the power to enforce the rights thus
sanctioned is not left to the public authorities
nor put in the keeping of the district court’s
discretion.

Missouri-Kansas Pipeline Co., 312 U.S. at 505-06.
/5 In addition to arguing that the Newspaper failed
to meet the requirements of Rule 24, the Parties
encourage us to "consider" the fact that the
Newspaper violated Local Rule 7.1 when it failed
to support its motion to intervene with a
memorandum of law. Local Rule 7.1 states in
pertinent part: "Every motion raising a question
of law shall be accompanied by a memorandum of
law including a brief statement of the specific
points or propositions of law and supporting
authorities upon which the moving party relies,
and identifying the rule under which the motion
is filed."

The district court recognized that the Newspaper
had violated the local rule. It stated: "By not
initially filing a memorandum of law when the
motion to intervene was filed, Applicant
disregarded [Local Rule] 7.1(B)(1). By filing the
reply, it violated the same rule. The Court has
previously stricken the reply. Disregard of the
Court’s rules will not be rewarded." R.47 at 2
n.1. Despite the deficiency, the district court
considered the merits of the intervention motion
and ruled in favor of the Parties.

We review a district court’s enforcement of its
own rules for an abuse of discretion. Cf. Little
v. Cox’s Supermarkets, 71 F.3d 637, 640 (7th Cir.
1995) (stating that, in the context of a local
summary judgment rule, "it is clear that the
decision whether to apply the rule strictly or to
overlook any transgression is one left to the
district court’s discretion"). The Parties do not
argue that the district court abused its
discretion in reaching the merits of the motion,
and we are not inclined to second guess, sua
sponte, the district court.

/6 The Newspaper filed a motion in this court to
strike those portions of the Parties’ brief which
address the policy concerns that weigh against
disclosure of the settlement terms. Although we
do not find occasion to consider the Parties’
arguments, there are circumstances under which
such arguments might be relevant, even at the
intervention stage. For instance, in Associated
Press, we did not foreclose the possibility that
"a failure to permit intervention [could] be
considered harmless if the position of the
petitioner had been fully considered by the
court." 162 F.3d at 508-09. Consequently, because
the issues of intervention and access do overlap
in some circumstances, we see no occasion to
strike any portions of the Parties’ brief.
Accordingly, the Newspaper’s motion is denied.