UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SCOTt HUAflNSKI

Plaint?ff-Appellufll ('ross-Appellee.

v.

HON. NANCY COR..W)NI:'S. HON. Iv! PATRICIA ZIA-fAIER. AND KARl;;}! PREDOlv!

DeJendants-Appellees/Cross-Appellants.

SHERIFF R. 1. ELRICK AND RUTLAND COUNTY SHERIFF'S DEPARTAfENT,

DeJendants-Appellees

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to 2nd Cir. R. 26.1, The Thomas Jefferson Center for the Protection of Free Expression (Name of Party)

makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? No

If the answer is YES, list below the identity ofthe parent corporation or affiliate and the relationship between it and the named party:

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No

If the answer is YES, list the identity of such corporation and the nature of the financial interest:

March 6, 2003 (Date)

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................. ii

INTEREST OF AJv11CUS CURiAE ................................................................... 1

SUMMARY OF FACTS ................................................................................... 1

SUMMARY OF ARGUl\!IENT ......................................................................... 3

I. ACCESS TO A COURTROOM MAY SELDOM BE DENIED CONSISTENT WITH THE SETTLED FIRST AMENDMENT RIGHT TO OBSERVE JUDICIAL PROCEEDINGS ..................................................... 4

II. A CITIZEN MAY NOT BE EXCLUDED FROM A PUBLIC PLACE IN RETALIATION FOR CRITICIZING A GOVERNMENT OFFICIAL WHO MANAGES THE SITE ................................................................................ 7

CONCLUSION............................................................................................... 11

1

TABLE OF AUTHORITIES

CASES Page(s)

Bowden v. Keane, 237 F.3d 125 (2d Cir. 2001) ................................................. 5

Bridges v. California, 314 U.S. 252 (1941) ....................................................... 6

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) ..................... 3, 5

Guzman v. Scully, 80 F.3d 772 (2d Cir. 1996) ................................................... 5

Huminski v. Rutland County, et. al., 134 F. Supp. 2d 362 (D. Vt. 2001) ........ 2, 8

Huminski v. Rutland County, et. al., 211 F. Supp. 2d 520 (D. Vt. 2002) .... 3, 7, 8

Huminski v. Rutland Police Department, 221 F.3d 357 (2d Cir. 2000) .............. 2

Naucke v. City ofPark Hills, 284 F.3d 923 (2d Cir. 2002) ............................ 4, 9

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ....................... 3, 4

Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995) ......................... 4, 9

Velazquez v. Legal Services Corp., 164 F.3d 757 (2d Cir. 1999), aff'd, 531 U.S. 533 (2001) ....................................................................................................... 10

CONSTITUTION

U.S. CONST. Amend. 1.. .......................................................................... passim

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INTEREST OF AA11CUS CURiAE

The Thomas Jefferson Center for the Protection of Free Expression is a

nonprofit, nonpartisan organization in Charlottesville, Virginia. Founded in

1990, the Center has as its sole mission the protection of freedom of speech and

press from threats of different fonus. The Center pursues that mission in

several ways, notably by filing amicus curiae briefs in federal and state courts

in cases that raise important free expression issues.

SUMMARY OF FACTS

Plaintiff-Appellant Scott Huminski is a self-described amateur reporter.

In the past, he has regularly attended state court proceedings and publicized

what be believed to be judicial misconduct by placing critical placards in the

windows of his house and his automobile. On May 24, 1999, Mr. Huminski

parked his car in the parking lot of the Rutland, Vennont, District Court.

Prominently displayed on the vehicle were signs with messages that were

highly critical of a state district court judge. Law enforcement officers and

court employees directed Huminski either to remove the signs or move the

vehicle. When he refused to accede to either demand, he was served with two

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notices of trespass. Although both these initial notices were withdrawn, a third

trespass notice was served on him five days later. That notice barred Huminski

from entering upon "[a]lliands and property under the control of the Supreme

Court and the C0111missioner of Buildings and General Services, including the

Rutland District Court, parking areas, and lands."

Mr. Huminski brought this action in the United States District Court for

the District of Vermont, claiming a violation of his First Amendment rights

under 42 U.S.c. § 1983. Included among the defendants named in the

complaint were the Rutland County Sheriffs Department, Rutland County

Deputy SheriffR. J. Elrick, Vermont District Court Manager Karen Predom,

and Vermont District Court Judges M. Patricia Zimmerman and Nancy

Corsones. Upon review of the district court's dismissal of claims against

certain defendants, this Court dismissed the appeal for lack of appellate

jurisdiction. Ruminski v. Rutland Police Department, 221 F.3d 357 (2d Cif.

2000). On remand, the district court granted Mr. Huminski's motion for a

preliminary injunction. Ruminski v. Rutland County, et. al., 134 F. Supp. 2d

362 (D. Vt. 2001) (hereinafter "Ruminski 1'). Subsequently, in ruling on

motions for summary judgment filed by the plaintiff and each of the defendants,

the district court granted the motions of the Rutland County Sheriffs

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Department and Deputy Sheriff Elrick but denied those of the other defendants

and Mr. Huminski. Huminski v. Rutland County, et. at., 211 F. Supp. 2d 520 (D.

Vt. 2002) (hereinafter "Huminski [1'). This appeal followed.

SUMMARY OF ARGUMENT

The judgment of the district court fails in three major respects adequately

to recognize substantial First Amendment interests that were abridged by the

action of Vermont officials in excluding a citizen from any and all access to

courtroOlns throughout the state. First, the Supreme Court has consistently

ruled that access to the courts is protected by the First Amendment, Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) - most clearly to the criminal

courtroom, but implicitly to civil proceedings as well. Second, in exceptional

situations where (despite the presUlnption of openness) access to the courtroom

may be limited or restricted, the Supreme Court has insisted upon a clear and

content-neutral rationale, specific and detailed findings made in open court, and

a resumption of access as soon as the conditions that warrant its denial have

passed. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).

Third, and perhaps most disturbing, the judgment of the district court

fails to recognize the incompatibility with First Amendment rights of denying a

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citizen access to any public place in retaliation or reprisal for his expression of

views that are critical of goven1ment or its officers. When the public official

who is the object of that criticism actually plays a part in closing the doors, as in

the present case, the dissonance with settled First Amendment principles is

starkly clear, as this Court has consistently recognized. E.g., Naucke v. City of

Park Hills, 284 F.3d 923, 927 (2d Cir. 2002); Singer v. Fulton County Sheriff,

63 F.3d 110, 120 (2d Cir. 1995).

Because of the district court's manifest departure from settled First

Amendment principles, amicus respectfully urges reversal of the judgment

below, and a remand for further proceedings consistent with the recognition of

such principles.

1. ACCESS TO A COURTROOM MAY SELDOM BE DENIED CONSISTENT WITH THE SETTLED FIRST AMENDMENT RIGHT TO OBSERVE JUDICIAL PROCEEDINGS.

The issue before this Court is whether a citizen may be barred from

proceedings of all types in any and every courtroom in the State of Vermont.

Such an exclusion is unprecedented, at least in recent times. For nearly a

quarter century, a citizen's right of access to the courtroom has been settled

beyond doubt. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980);

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Bowden v. Keane, 237 F.3d 125, 129 (2d Cir. 2001) (recognizing the First

Amendment right of access to "a courtroom whose doors are open to any

members of the public inclined to observe a trial. ") The basis for citizen

access is clearest with respect to criminal proceedings, but implicitly extends to

civil proceedings as well. In the present case, no such distinction need be

considered since the challenged exclusion covers proceedings of all types, both

civil and criminal.

There are circumstances in which denial of access to the courts may be

temporarily curtailed to preserve vital interests of the judicial process. Certain

pre-trial proceedings may be closed to the press and the public for compelling

reasons, Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982),

although any such closure must be preceded by a hearing in open court at which

specific and detailed findings must be made to support so drastic an exclusion.

Cf Guzman v. Scully, 80 F.3d 772, 775-76 (2d Cir. 1996). In very limited

circumstances, protests and demonstrations in or near a courtroom may be

regulated to ensure the fairness and impartiality of the judicial process.

Within the courtroom, a trial judge is clearly empowered to preserve the

order and integrity of his or her court - by citing for contempt, in extremis, any

person who physically or verbally disrupts judicial proceedings. Such

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disruption must almost invariably occur within the courtroom to constitute

actionable contempt; the Supreme Court's ruling in Bridges v. California, 314

U.S. 252 (1941) makes clear the First Amendment hazards of permitting any

legal sanctions to be imposed on out-of-court statements, however critical of

and unwelcome they may be to a trial judge.

Apart from actual disruption, there is at least one situation in which a

particular person may be barred from entering the courtroom until a specific

moment~ a witness whose testimony is pending may be denied access to the

courtroom during earlier stages of the case. Such an exclusion, either to ensure

the order and integrity ofjudicial proceedings, or to preserve untainted the

testimony of a future witness, poses no affront to a citizen's First Amendment

rights to attend and observe events in a courtroom.

The stark contrast between situations such as these and the case now

before this Court illustrate how very novel and unprecedented is Mr.

Ruminski's plight. What Mr. Ruminski did that got him barred from all

Vennont courtrooms was to display in his car a sign containing comments that

were critical of, and offensive to, a district court judge, and the subsequent

parking of that car in the Rutland court parking lot. Such an affront is a far cry

indeed from the type of in-court disruption that might warrant a contempt

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citation. Nor is there any possible analogy to the special circumstances under

which all members of the press and the public might be temporarily asked to

leave a courtroom - apart from the absence of any of the specific and detailed

findings which would be pre-requisite to any such limited closure. Nor is there

any suggestion here of any possible actions on Mr. Huminski's part-- an

apology, recantation or some other form of penance -- which might dissolve the

ban and reinstate his access to Vermont's courtrooms. Under these conditions,

the judgment of the district court failed adequately to recognize the grave

departure of the challenged action from well settled and fully applicable First

Amendment principles.

II. A CITIZEN MAY NOT BE EXCLUDED FROM A PUBLIC PLACE IN RETALIATION FOR CRITICIZING A GOVERNMENT OFFICIAL WHO MANAGES THE SITE.

In its most recent ruling, the district court noted "disputed material facts"

concerning the basis on which Huminski had been barred from the Vermont

courts. Huminski 11, 211 F. Supp. 2d at 542. Despite strong, and initially

dispositive, evidence of official reprisal or retaliation for voicing unwelcome

criticism of a state trial judge, a claim of courtroom security subsequently

7

entered the equation and brought about the apparent "dispute." See id. at 529­

531.

Reliance on the security rationale seems untenable for two distinct

reasons. For one, the district court found unequivocally in Huminski J that "the

Defendants' decision to execute the notices of trespass and to immediately eject

Huminski from the courthouse was based exclusively on their displeasure with

the van's display," adding that "[defendants] do not allege that Huminski

engaged in any other type of conduct or speech that might have threatened

violence, created a nuisance, or interfered with orderly administration of

justice." 134 F. Supp. 2d at 363. While the district court's most recent opinion

fails to accept the full implications of that fmding, citing instead a possible

security concern, the earlier ruling seems as dispositive as it is unambiguous.

The second reason for rejecting the asserted "security" rationale is

closely related. The record simply contains no evidence that would support

such a basis for barring Huminski from any courtroom. Surely nothing in the

unwelcome signs on the van, displayed in May, 1999, could be said to have

threatened the security or the integrity of any judicial proceeding; at most such

admittedly irreverent and intemperate accusations could tarnish the dignity or

stature of ajudge - hardly a threat to the security of that judge or of

8

proceedings in her courtroom. Nor could anything contained in

comn1unications after the trespass notice - letters to other state officials, and

statenlents in a complaint to the Judicial Conduct Board - be deemed inimical

to security, apart from the fact that such statements are clearly within a citizen's

right to petition government for redress of grievances as well as to speak freely

on important public issues. Thus there seems little doubt that the only viable

basis for taking action against Mr. Huminski' s was the offending nature of the

signs he displayed on the van in the parking lot.

This Court has affmned the central principle that rejects such an official

reprisal as the one challenged here: "[C]riticism of public officials lies at the

very core of speech protected by the First Amendment ... Retaliation by a

government actor in response to . . . an exercise of First Amendment rights"

violates constitutional protections. See Naucke v. City ofPark Hills, 284 F.3d

923, 927 (2d Cir. 2002); see also Singer v. Fulton County Sheriff, 63 F.3d 110,

120 (2d Cir. 1995) ("allegation of retaliatory prosecution goes to the core of the

First Amendment.")

Accordingly, barring a citizen from a governmental facility because he

had spoken critically of state government or any of its officials would run

directly contrary to this Court's persistent conviction that "[t]he strongest

9

protection of the First Amendment's free speech guarantee goes to the right to

critici[ze] govenunent or advocate change in government policy." Vela::que:: v.

Legal Services Corp., 164 F.3d 757,771 (2d Cir. 1999), aff'd, 531 U.S. 533

(2001). When the official who was the target or object of the criticism plays a

role in such retaliatory sanction, as is clearly the case here, First Amendment

concerns about reprisal for unwelcome expression is substantially compounded.

Finally, the reversal of this ruling would in no way deprive state judges

or law enforcement officials of needed authority to maintain the order and

integrity ofjudicial proceedings. Behavior in a courtroom which disrupts legal

proceedings may surely be the subject of contempt proceedings. The

occasional need to clear a courtroom ofpress and public to protect an especially

sensitive facet of the process is well recognized -as are the procedures by which

to establish the basis for such temporary or limited closure. However, none of

the circumstances justifying use of such procedures are present in this case.

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CONCLUSION

For the foregoing reasons, amicus curiae respectfully urges this Court to

reverse the judgment of the district court, and to remand the case for further

proceedings consistent with settled First Amendment principles.

Respectfully submitted,

f. Jo~eeler Robert M. O'Neil The Thomas Jefferson Center for

the Protection of Free Expression 400 Peter Jefferson Place Charlottesville, VA 22911-8691 (434) 295-4784

Counsel for Amicus Curiae

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CERTIFICATE OF COMPLIANCE

l. This brief complies with the type-volume limitation of Fed. R. App.

P.32(a)(7)(B) because: This brief contains 2,139 words, excluding the parts

of the brief exempted by Fed.R. App. P.32(a)(7)(B)(iii) or

2. This brief complies with the typeface requirements of Fed. R. App. P. 32

(a)(5) and the type style requirements of Fed. R. App. P. 32 (a)(6) because:

This brief has been prepared in a proportionally spaced typeface using

Microsoft Word in 14 Times New Roman.

J. Joshua Wheeler Attorney for Amicus Curiae

Dated: March 6, 2003

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CERTIFICA TE OF SERVICE

Pursuant to Federal Rule of Appellate Procedure 25, the undersigned

hereby certifies that the requisite number of copies of the foregoing Motion for

Leave to File and Brief of Amicus Curiae and were dispatched (First Class,

postage prepaid) this 6th day of March, 2003 by United States Postal Service

for delivery to the Clerk of Court and counsel for Plaintiff-Appellant/Cross-

Appellee and Defendants-Appellees/Cross Appellants and Defendants-

Appellees at the following addresses:

Robert Com-Revere, Esq. Davis Wright Tremaine LLP Suite 450, 1500 K Street, N.W. Washington, District of Columbia 20005-1272 (202) 508-6600 Counsel Jor the Plantif.f-AppellantICross-Appellee

Joseph Winn, Esq. Vermont Attorney General's Office 109 State Street Montpelier, VT 05609 (802) 828-5506 Counsel Jar the DeJendant-Appellee!Cross-Appellant

Shannon Bertrand, Esq. Max Taylor, Esq. Reiber, Kenlan, Schwiebert & Facey, P.C. 71 Allen Street Rutland, VT 05702-0578 802-773-3300 CounselJor the DeJendants-AppelleesICross-Appellants

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Peitro Lynn, Esq. Lynn and Associates 7 Kilburn Street Burlington, VT 05401 (802) 860-1500 Counsel for the Defendants-Appellees

J. loshlta Wheeler Counsel for Amicus Curiae

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