United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 22, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-60510
_____________________
In Re: GULF PUBLISHING COMPANY, INC.,
Petitioner.
_________________________________________________________________
Petition for Writ of Mandamus to the
United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CR-120-ALL
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Gulf Publishing Company, Inc. has requested a writ of mandamus
to require the district judge to unseal the court file in the case
of United States of America versus Paul S. Minor; John H.
Whitfield; Oliver E. Diaz, Jr.; and Walter W. Teel, Case No. 3:30-
CR-00120-HTW-JCS-ALL, presently pending before Chief Judge Henry T.
Wingate in the United States District Court for the Southern
District of Mississippi. On June 13, 2005, the district court
judge advised the Clerk’s Office of this court, via telephone, that
an order would be entered by the end of that week. At 3:05 p.m.
yesterday, June 21, the district judge’s secretary called the
Clerk’s Office of this court and she made the representation that
he would rule by Friday, June 24.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
The sealed documents at issue were filed in a criminal case
alleging judicial bribery, brought by the United States of America
against a Mississippi Supreme Court justice, two former Mississippi
state court judges, and a trial lawyer from Biloxi, Mississippi.
The petitioner, Gulf Publishing Company, publishes the Sun Herald
newspaper in Gulfport, Mississippi. On April 1, 2005, Gulf
Publishing filed an Emergency Motion to Unseal the Court File, to
Obtain Transcripts of Oral Arguments on Motions to Seal the Court
File, to Object to Future Closure of Court File or Courtroom, and
to Obtain Notice of Closure of the Court File or Courtroom. The
defendants filed a response in opposition to the motion to unseal
on April 15, and Gulf Publishing filed a reply on April 20.
The district court conducted a hearing on the emergency motion
to unseal on April 26, 2005. At the conclusion of the hearing, the
court stated that it would render a decision on the motion on the
following Friday, April 29, 2005. On April 29, the court stated
that it would make its decision the following Monday, May 2, 2005.
As of today, June 22, no ruling has been made.
The trial began on June 6. Our review of the docket sheet
shows that on June 14, the district court entered an order
continuing the trial until June 20. The trial apparently resumed
on June 20, and is expected to last for several more weeks. Gulf
Publishing asserts that, both before and after the trial commenced
on June 6, the district judge has continued to announce his
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intention to decide the emergency motion to unseal the court file,
but has not issued a ruling.
In its petition for writ of mandamus, Gulf Publishing contends
that the district court has violated the First Amendment, federal
common law, and its own local rule by not entering any order
articulating the basis, if any, for sealing the court file. Gulf
Publishing asserts that, because the jury has been selected, there
is no longer any risk that disclosure of the sealed documents will
prevent the selection of a fair and impartial jury, and no reason
to hide the court file from the public and the press.
Gulf Publishing seeks a writ of mandamus requiring the
district court to immediately unseal the entire court file and not
to seal any portion thereof again, and to order that Gulf
Publishing receive a copy of any transcript of oral argument on any
motions to close the courtroom or to seal the court file in the
district court.
A writ of mandamus is an extraordinary remedy that “is
appropriate only when the trial court has exceeded its jurisdiction
or has declined to exercise it, or when the trial court has so
clearly and indisputably abused its discretion as to compel prompt
intervention by the appellate court.” In re: United States, 397
F.3d 274, 282 (5th Cir. 2005) (internal quotation marks and
citations omitted). Three requirements must be satisfied “before
a writ will issue: (1) the party seeking issuance of the writ
[must] have no other adequate means to attain the relief he
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desires; (2) the petitioner must satisfy the burden of showing that
[her] right to issuance of the writ is clear and indisputable; and
(3) even if the first two prerequisites have been met, the issuing
court, in the exercise of its discretion, must be satisfied that
the writ is appropriate under the circumstances.” Id. (internal
quotation marks and citations omitted).
The district court has clearly and indisputably abused its
discretion by failing to make any ruling on Gulf Publishing’s
motion, despite having made repeated representations -- including
to the office of the Clerk of this court -- that a ruling was
forthcoming. Gulf Publishing has no other adequate means to attain
the relief it seeks. Although Gulf Publishing has not shown that
it is entitled to the specific relief requested in its petition for
writ of mandamus, it has met its burden of showing a clear and
indisputable right to have the district court judge make a ruling
on its motion. Over a month has passed since the district court
indicated that it would rule on the motion. The jury has been
selected, and the trial is well underway. Despite the four-day
continuance of the trial last week, the ruling promised by the
district judge by the end of last week has still not been entered.
In the exercise of our discretion, we are satisfied that the
issuance of a writ of mandamus is appropriate under these
circumstances.
This matter, however, is held in abeyance trusting the
district judge’s representation that he will address the matters
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referred to in the petition for writ of mandamus by Friday, June
24. If he fails to act, the court will further consider the
petition.
SO ORDERED.
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