Scott HUMINSKI, Plaintiff-Appellant-Cross-Appellee,
v.
Hon. Nancy CORSONES, Hon. M. Patricia Zimmerman, Karen Predom, Defendants-Appellees-Cross-Appellants,
Sheriff R.J. Elrick and Rutland County Sheriff's Department, Defendants-Appellees.
No. 02-6201(L).
No. 02-6150(XAP).
No. 02-6199(XAP).
No. 03-6059(CON).
United States Court of Appeals, Second Circuit.
Argued: October 20, 2003.
Decided: October 7, 2004.
As Amended on Rehearing: January 18, 2005.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Robert Corn-Revere, Davis Wright Tremaine, LLP (Ronald G. London, Robert B. Mahini, and Constance M. Pendleton, of counsel), Washington, DC, for Plaintiff-Appellant.
Shannon A. Bertrand, Reiber, Kenlan, Schwiebert & Facey, P.C., Rutland, VT, for Defendants-Appellees-Cross-Appellants Hon. Nancy Corsones and Hon. M. Patricia Zimmerman.
Joseph L. Winn, Assistant Attorney General of the State of Vermont (William H. Sorrell, Attorney General of the State of Vermont), Montpelier, VT, for Defendant-Appellee-Cross-Appellant Karen Predom.
Pietro J. Lynn, Lynn & Associates, P.C., Burlington, VT, for Defendants-Appellees Sheriff R.J. Elrick and Rutland County Sheriff's Department.
J. Joshua Wheeler (Robert M. O'Neil, of counsel), Charlottesville, VA, for Amicus Curiae The Thomas Jefferson Center for the Protection of Free Expression.
Before: McLAUGHLIN, CABRANES, and SACK, Circuit Judges.
SACK, Circuit Judge.
The plaintiff, Scott Huminski, is a long-time critic of the Vermont justice system who has sought to disseminate his message using a wide variety of means and media. In 1997, he became infuriated by what he thought to be his mistreatment by Vermont judges and prosecutors in the course of criminal proceedings against him. He therefore began to include angry denunciations of them in his public communications. He apparently thought himself to be a legitimate gadfly — a quintessential example of what Justice White once referred to as the "lonely pamphleteer."1 But Vermont judges and court personnel, against the background of then-recent acts of terrorism and violence, interpreted his behavior as a potential threat to personal safety, to court property, and to the orderly conduct of court business. Vermont officials therefore broadly prohibited Huminski's presence in and around certain state courthouses. Huminski complains that the restrictions are unconstitutional.
In traversing these waters, we must avoid foundering on either of opposing shoals. One is abridgement of the rights that the First Amendment, as applied to the States through the Fourteenth Amendment, confers on members of the public and press to attend and report on judicial proceedings and to speak out on public issues. The other is impairment of the ability of courts effectively and efficiently to protect their personnel, property, and processes. We endeavor to chart a course between them.
We conclude that Huminski had an individual First Amendment right of access to court proceedings even though he was not a party to and had no other official connection with them. The right created a presumption that he was entitled to access, but one that could be overcome if court officials reasonably decided that he might pose a threat to persons, property, or proceedings and if the restrictions on his access were reasonably tailored to meet the legitimate goals of the exclusion. We conclude, however, that this individual right was not well-settled at the time of the events at issue here and that the defendants are therefore entitled to qualified immunity with respect thereto.
We also conclude that although the Rutland courthouses and grounds are nonpublic forums, singling Huminski out for a prohibition against his ability to express himself on any subject in those locations violated his First Amendment right to express himself.
In addition, we decide that defendants Sheriff Elrick, acting in his official capacity, and the Rutland County Sheriff's Department are protected by sovereign immunity from Huminski's lawsuit insofar as it seeks retrospective relief. We conclude, finally, that both Judge Corsones and Judge Zimmerman are entitled to judicial immunity with respect to these events.
BACKGROUND
Because consideration of the issues before us requires a careful review of the record, we set forth the factual background, and the competing factual assertions of parties and witnesses, in unfortunate detail. The manner in which we are required to consider such conflicting assertions of fact differs from argument to argument on appeal, as we explain below.
At all relevant times, Huminski was a Vermont resident with an intense interest in the conduct of public officials involved in the state's justice system, in particular, members of the state judiciary and the office of the Vermont Attorney General. Huminski, acting as what he calls a "citizen reporter," disseminated his views by, among other things: becoming a source for national and local news organizations; posting signs at his residence and on his van parked in areas adjacent to public venues, such as the Vermont Statehouse and state courthouses; filing judicial conduct complaints; writing letters to public officials; and seeking public office. He based his views in part on his observations while attending state court sessions.
As of May 24, 1999, Huminski had sought to convey his views about the Vermont justice system at the Bennington District Court in Bennington, Vermont. He did so some thirty times by posting signs on his van parked there. He encountered no opposition to his doing so or to his presence at Bennington District Court proceedings.
Criminal Charges
Huminski's interaction with Vermont's justice system had begun in earnest in February 1997, when he was charged in the Bennington District Court with two counts of obstruction of justice. He was alleged to have sought to silence a possible witness against him in a civil case by threatening to have the witness jailed for shipping alcohol to minors if the witness testified. Huminski was further alleged to have manufactured evidence that the witness was in fact shipping alcohol to minors.
Judge Nancy Corsones, a defendant in the instant proceedings, was assigned to preside in Huminski's case. Huminski and the state reached a plea agreement, which Corsones initially approved. Subsequently, however, she granted the state's motion to vacate the plea agreement, allowing the state to reinstate the charges against him. See State v. Huminski, No. 203-2-97 Bncr, at 12 (Vt.Dist.Ct. Sept. 4, 1998).2 Soon thereafter, Huminski filed several complaints against Corsones regarding that decision with Vermont's Judicial Conduct Board. The complaints were ultimately dismissed as meritless.
Letters of Complaint
In September 1998, Huminski also sent letters of complaint to several Vermont public officials. Two of the letters are of particular interest. One, bitterly complaining about what Huminski thought to be his unfair treatment at the hands of the state, was sent to Cindy Maguire, Chief of the Criminal Division of the Vermont Attorney General's Office. In it, Huminski railed against, among other things, what he referred to as Vermont "policies in violation of due process," and crimes against himself and his wife. He warned that he would have to "take the law into [his] own hands and initiate activities that will get national media attention." An excerpt from the letter is set forth in the margin.3
Huminski sent the other pertinent letter to Vermont Attorney General William Sorrell, referring to similar contentions that he had previously made. In relevant part, he wrote:
Your willingness to pervert the law of the State of Vermont for the purpose of attacking one person is criminal. I believe the state will prevail in its goals[;] however, I believe my future activities will prevent the state from engaging in this behavior ever again. I require a response to my previous correspondences by noon today. Continued evidence of your corrupt behavior requires that I accelerate my activities.
Shortly thereafter, state law-enforcement officials investigated the correspondence. They decided that the letters were no more than Huminski's expressions of frustration with the Vermont justice system, and that they did not exhibit an intent or desire on the part of Huminski to inflict personal harm to anyone.
Corsones was neither the explicit subject nor a recipient of the letters. She nonetheless became aware of them soon after Huminski sent them. She interpreted the letters as a threat to her safety, that of her family, and that of the Vermont court system. More specifically, she thought that they contained a veiled bomb threat.4
Corsones's views were reinforced by fearful Bennington District Court staff members who similarly perceived the letters as threats and told Corsones so. The staff members also voiced their concern about Huminski's repeated presence at the courthouse in Bennington, particularly their fear that his van, often parked nearby, might contain a bomb.
According to Corsones, at about this time, Huminski telecopied at least four communications to her former law office, where her then-husband continued to practice law. The only such communications that we find in the record, however, are Huminski's complaints against her to the Judicial Conduct Board, which he asserts he sent to her to put her on notice of the complaints for purposes of according her due process.
Protest at Rutland District Court
More than six months later, on the morning of May 24, 1999, Huminski drove his van to the Rutland District Court courthouse in Rutland, Vermont — some fifty-five miles north of Bennington — where Corsones was then presiding. He later testified that his purpose was to publicize what he thought to be Corsones's "oppressive and unconstitutional conduct." Tr. of Dep. of Scott Huminski, Oct. 26, 2001, at 96. At approximately 7:30 a.m., Huminski parked his van in a legal parking space in the Rutland District Court parking lot. He displayed, on one side of the van, three signs, each measuring forty-five inches by fifty-four inches. They read, respectively:
JUDGE CORSONES:
BUTCHER OF THE CONSTITUTION
* STRIPS DEFENDANTS OF RIGHT TO DEFENSE COUNSEL
* REINSTITUTES CHARGES VIOLATING ART 11, CH1, VT CONST.
* PUNISHES PROTECTED EXPRESSION WITH CRIMINAL CHARGES
* MALICIOUSLY DISREGARDS DOUBLE JEOPARDY BY REINSTITUTING CHARGES AFTER CONVICTION AND FULL PUNISHMENT
* SUBVERTS DUE PROCESS BY VACATING BINDING PLEA AGREEMENT POST-PUNISHMENT
* UNCONSTITUTIONALLY PUNISHES DEFENDANT FOR SEEKING REDRESS OF GRIEVANCES IN CIVIL COURT
* IGNORES AND ENCOURAGES PROSECUTORIAL VIOLATIONS OF THE CODE OF PROFESSIONAL RESPONSIBILITY
CORSONES' OPINION
[Displayed was a copy of Corsones's September 4, 1998, opinion vacating Huminski's plea agreement.]
THE LAW
[Displayed were the decision of another state's criminal court and three motions by Huminski to vacate Corsones's September 4, 1998, opinion and to dismiss the charges against him in his case before Corsones.]
Despite the presence of the signs on the van, Huminski later testified, its interior remained visible through the windows that were not blocked by the posters. This was the first time Huminski had explicitly mentioned Corsones in a public protest.
According to the deposition testimony of Deputy Sheriffs Steven Schutt and Mark Beezup of the defendant Rutland County Sheriff's Department, they were on a security detail at the Rutland District Court that morning pursuant to a contract between the Sheriff's Department and the Vermont Court Administrator's Office. The performance of the contract was supervised by the defendant Rutland County Sheriff R.J. Elrick.5 They noticed the van and the signs on it, which, Schutt recalled, contained Corsones's name. They saw that although some of the van's windows were covered, others were visible and presumably would permit them to see into the vehicle.6 Neither Schutt nor Beezup could recall whether either of them said anything to Huminski that morning, although Schutt remembered that Huminski said that he was there to observe the day's court proceedings and Beezup thought it likely that another officer on the scene spoke with Huminski.
The deputy sheriffs contacted their supervisor, Captain Bruce Sherwin. They asked him whether the presence of the signs on the van violated the law. Sherwin responded that they did not. According to Beezup and Schutt, they then returned from the parking lot to the courthouse.
Huminski testified, however, that Schutt and Beezup told him before returning to the courthouse that they had a problem with the signs on the van and asked him to remove them. Huminski refused. They then asked him to move his van to the back of the parking lot. Again he refused. Finally, Beezup told Huminski that the parking lot was for official court business only. Huminski replied that he was there to attend the day's court proceedings. Neither deputy sheriff voiced a security-related concern about either Huminski's signs or his parked van.
When Corsones arrived at the Rutland District Court that day, she entered through the employee side-entrance. According to her deposition testimony, a court staff member met her there and told her — mistakenly — that Huminski had improperly or illegally parked his van near the building on the other side of the courthouse. The staff member told her that a court deputy had asked Huminski to move his van, which he refused to do. The apparently skittish staff member also told her — again mistakenly — that no one could see inside the rear of the van. And a staff member reported that the signs called Corsones a "butcher." Corsones herself never saw the van or the signs.
Deputy Sheriff Schutt also told Corsones that there was a van parked outside the courthouse with signs on it that mentioned her. According to Schutt's and Beezup's deposition testimony, Corsones responded that Huminski had criminal charges pending against him in Bennington and that he had threatened her with regard to the charges. She later testified that, at the time, she was alarmed by what she had been told that morning because of the earlier letters Huminski had sent and because she thought that Huminski was obsessed with her as a result of her previous reinstatement of the criminal charges against him. She was particularly afraid that Huminski's van might contain explosives, although she did not tell the deputies so. Beezup testified that Corsones asked Schutt and him "if we could do something with [Huminski] ... — basically, she didn't want him on the property." Tr. of Dep. of Deputy Sheriff Mark Beezup, Oct. 24, 2001, at 7.
The defendant Karen Predom, Court Manager for the Rutland District Court and the Rutland Family Court, was, at about this time, informed of the Huminski situation. One of Predom's responsibilities was maintenance of security at the courthouse. She therefore attempted to keep track of Huminski's whereabouts. She also telephoned Ed Polk, Vermont's statewide Director of Court Security, bringing him up to date on the incident.
Corsones spoke with Predom at some length about Huminski's presence. She told Predom about the history of her previous interactions with him in Bennington and the letters he had sent to public officials. Predom later testified that based on this information, Huminski's activities worried her, particularly because of then relatively recent detonations of explosives in vehicles inside the garage of the World Trade Center in New York in 1993 and alongside the Alfred P. Murrah Federal Building in Oklahoma City in 1995. Her fears were exacerbated by her mistaken understanding that no one could see the inside of Huminski's van.
After their initial conversation, Predom and Corsones together placed another telephone call to Polk to discuss Huminski. They told Polk about their fears. The three discussed the possibility of having the situation investigated or of issuing a "Notice Against Trespass" to Huminski covering the Rutland District Court.
Corsones was unwilling to begin proceedings in her courtroom while the perceived threats to her personal security remained unresolved. Predom therefore telephoned the defendant Rutland District Court Judge M. Patricia Zimmerman, who was presiding that day in Rutland Family Court. Predom told Zimmerman that Huminski had a vehicle parked at the courthouse with signs on it and that at least one sign discussed Corsones. Predom asked Zimmerman whether, given the Huminski issue, she would handle Corsones's docket that morning. Zimmerman demurred on the ground that her own docket was full.
May 24 Notice Against Trespass
Corsones told the court staff that because of Huminski's Judicial Conduct Board complaints against her, she would not participate in any decision about the court's response to his presence.7 It was Predom, then, who took charge of the situation. She decided to issue a Notice Against Trespass to Huminski. Corsones, meanwhile, requested that Schutt issue a parallel Notice Against Trespass to Huminski covering her residence and her former law office.
At about 8:30 a.m., an hour after the incident had begun, Rutland City Police Officer Robert Emerick was dispatched to the Rutland District Court to meet with Predom in response to her request that a Notice Against Trespass be issued.8 The Sheriff's Department "LAW Incident Table" listed Corsones as the complainant.9 When Emerick arrived, Predom requested that he serve a trespass notice on Huminski.10
Predom told Emerick that Huminski had already created difficulties, without detailing them. Emerick then completed the form for a Notice Against Trespass based on Predom's instructions.
The completed form (the "May 24 Notice") stated that Huminski was "not to enter upon or remain upon the property that is lawfully possessed by" the Rutland District Court. The May 24 Notice permitted Huminski to enter upon and remain upon the Rutland court property, however, "only when [he had] a written notice from the court directing [his] appearance or if [he had] made prior arrangements or permission of the court manager" (emphasis in original). Predom signed the May 24 Notice as the "owner" or "tenant" of the Rutland District Court.
At about the same time, Captain Sherwin informed Sheriff Elrick that Huminski was present on court property; that he had parked his vehicle, with signs mounted on it, in the court parking lot; and that court staff members had contacted the Sheriff's Department to convey their concern. Elrick thought Huminski to be a potential security risk based on information he had theretofore received from Corsones and others. At some point during the prior several weeks, Corsones had told him about her fears. Elrick had also previously learned that members of the staff of the Bennington District Court thought that the purpose of Huminski's presence at the courthouse was to intimidate them and that they were in fact afraid of him.
Elrick drove to the Rutland District Court. When he arrived, he saw Huminski's van. He also saw the signs, although he did not get close enough to read them.
Officer Emerick informed Sheriff Elrick that he, Emerick, was going to serve the May 24 Notice on Huminski. Emerick asked Elrick to accompany him. Elrick did not participate in the decision to issue the notice. He was unaware that court personnel feared that Huminski's van contained explosives.
Shortly before 9 a.m., Huminski entered the courthouse, where he underwent security screening without incident. He waited quietly in the hallway for the day's proceedings to begin. Soon thereafter, Emerick approached Huminski and asked him to retire to a conference room with Emerick, Elrick, and Deputy Sheriff Schutt. Once inside, Emerick served Huminski with the May 24 Notice.11
Huminski refused to acknowledge formally his receipt of the May 24 Notice. Elrick therefore signed it as a witness instead. Schutt also served Huminski with similar Notices Against Trespass for Corsones's residence and her former law office. Elrick signed these notices, too, in the face of Huminski's refusal to execute an acknowledgment of their receipt. Huminski was told that he would be in violation of the May 24 Notice if he did not leave the courthouse. He therefore left, peacefully, with the three trespass notices in hand.
May 27 Notice Against Trespass
Soon after the incident at the Rutland courthouse, Elrick discovered that because of a then-recent statutory change, the May 24 Notice was improperly executed inasmuch as it had been signed by Predom alone. Elrick understood that under the new Vermont law, the court administrator's office was responsible for state courthouses but the Vermont Commissioner of Buildings and General Services (the "Commissioner") was now responsible for the grounds adjacent to the courthouses and other state property. Predom therefore could execute a trespass notice only for the courthouse, not for the adjacent parking lot and other grounds. The Commissioner told Elrick that he could act as the Commissioner's agent to sign a renewed Notice Against Trespass applicable to the courthouse grounds and other state property on his behalf.
The court administrator's office and the administrative judge of the Rutland District Court therefore decided that a presiding judge would sign another Notice Against Trespass on behalf of the Rutland District Court. On May 27, 1999, another Notice Against Trespass (the "May 27 Notice") was therefore issued and served on Huminski, barring him from "enter[ing] upon or remain[ing] upon the property that is lawfully possessed by" the Rutland District Court. The May 27 Notice further identified the property as that "located in the Town of Rutland, County of Rutland, State of Vermont," which included "[a]ll lands and property under the control of the Supreme Court and the Commissioner of Buildings and General Services, including the Rutland District Court, parking areas, and lands."12 It was executed jointly by Zimmerman, on behalf of the court administrator's office as a presiding judge in the Rutland District Court (to cover the courthouse), and Elrick, as the agent of the Commissioner (to cover other court property). Zimmerman signed it after Elrick briefed her about Huminski's van being parked in the courthouse parking lot on May 24 and about what he thought was an inability to see underneath the van. By this time, Zimmerman had also learned of the general tenor of the two letters by Huminski to the Vermont Attorney General's office and had been told that Huminski had persistently tried to contact Corsones by letter and telecopy. The May 24 Notice signed by Predom was not, however, formally withdrawn. Huminski promptly moved in the Rutland District Court to vacate the May 24 and May 27 Notices and to disqualify Corsones from adjudicating the motions. A presiding judge — neither Corsones nor Zimmerman — decided that the motion to disqualify Corsones was moot. While doing so, the court noted its understanding that the May 24 Notice had been withdrawn, presumably by operation of the issuance of the May 27 Notice. The court concluded, however, that "the district court is a court of limited jurisdiction and cannot convene a `special proceeding' to determine those issues." June 29, 1999, Entry Regarding Motion in Huminski v. Rutland Dist. Court (Vt.Dist.Ct.1999). It also determined that because the court was itself a respondent in the proceedings, Huminski would be required to pursue his claims elsewhere.
Huminski later testified that the trespass notices have limited his ability to attend court sessions to observe judicial proceedings, which in turn has interfered with his ability to gather information and disseminate his views about the Vermont judicial system. He also testified that the notices have stopped him from fully continuing his protest activities at the Rutland District Court and other Vermont state courts because of his fear of arrest and criminal prosecution.
District Court Proceedings
On June 1, 1999, Huminski filed suit against Corsones, Zimmerman, Predom, Elrick, and the Rutland County Sheriff's Department, in the United States District Court for the District of Vermont. He claimed, among other things, that the defendants had deprived him of his First and Fourteenth Amendment rights to criticize public officials and to gain access to courthouses. He invoked 42 U.S.C. § 1983, requesting declaratory, injunctive, and monetary relief.13
On February 2, 2001, Huminski moved in the district court for a preliminary injunction prohibiting the defendants from enforcing the May 24 and May 27 Notices, as well as any future trespass notices, until the court rendered a decision on the merits of the case. On February 27, 2001, the court (J. Garvan Murtha, Judge) preliminarily enjoined the defendants "from issuing or enforcing any notices of trespass against Huminski that prevent him from accessing court property where such notices are based solely upon Huminski's public expression of his political opinions so long as the expression does not disrupt or threaten the orderly performance of court business." Huminski v. Rutland County,
On March 9, 2001, Corsones and Zimmerman moved to dismiss Huminski's complaint on the grounds, among others, that they were absolutely immune from suit under the doctrine of judicial immunity and that they were immune from suit in their official capacities under the Eleventh Amendment. The district court denied the motion in part and granted it in part. See Huminski v. Rutland County,
On January 31, 2002, and February 1, 2002, the various defendants moved for summary judgment. Elrick and the Rutland County Sheriff's Department argued, among other things, that they were entitled to sovereign immunity and qualified immunity, that there was no basis on which to grant a permanent injunction against them, and that the Department could not be liable under 42 U.S.C. § 1983 for the actions of its employees under the doctrine of respondeat superior. Corsones and Zimmerman asserted in relevant part that they were entitled to absolute judicial immunity and to qualified immunity. And Predom contended, among other things, that she was entitled to qualified immunity, that Huminski had not suffered any injury, and that injunctive relief was unwarranted because there was no continuing violation of federal law.
On January 31, 2002, Huminski cross-moved for partial summary judgment and asked that the injunction be made permanent on the grounds that, construing the evidence in the light most favorable to the defendants, their actions violated his constitutional rights to attend court hearings and to criticize public officials. He also contended that neither judicial nor qualified immunity protected the defendants' actions.
On July 11, 2002, the district court, in a thoughtful and thorough opinion, ruled that Predom, Corsones, and Zimmerman were immune from suit in federal court insofar as Huminski sought damages against them in their official capacities. Huminski v. Rutland County Sheriff's Dep't,
What then remained of Huminski's section 1983 claims were his requests (1) for monetary relief against Predom, Elrick, Corsones, and Zimmerman in their personal capacities for alleged past constitutional violations, and (2) for permanent injunctive and declaratory relief against Predom, Corsones, and Zimmerman in their official capacities for alleged ongoing constitutional violations. Id. at 532.
The district court concluded that Corsones and Zimmerman did not qualify for judicial immunity. Id. at 535. It ruled that "the issuance of a criminal trespass notice in Vermont is not a judicial act." Id. at 533. It held that Corsones's involvement in the decisionmaking process that led to the issuance of the trespass notices was sufficient to trigger possible personal liability for her. Id. at 533-34. According to the court, the judges were "act[ing] in a ... non-judicial capacity — as the representative of the true landowner (the State of Vermont) — in facilitating the issuance of the initial trespass notice." Id. at 534 (Corsones); see also id. at 535 (Zimmerman). Moreover, the court reasoned, "the general rule that judges act in a judicial capacity whenever they order the removal of persons from their courtroom who disrupt or otherwise negatively impact the judicial process" did not apply because providing security at a courthouse building is not an adjudicative function. Id. at 534. The court also observed that the Vermont statute that entrusts the state judiciary with the duty to maintain security at Vermont courthouses does not transform trespass notices issued by state judicial officers into judicial acts. Id. Finally, the court concluded that the judges' actions were not judicial in nature "because Huminski had no official business" at the Rutland District Court on the morning in question. Id. at 534-35.
Turning to the First Amendment questions raised by the parties' motions, the district court construed the May 27 Notice as barring Huminski from all lands and property under control of the Vermont Supreme Court, even those outside of Rutland. See id. at 528-29 & 529 n. 11. The court determined that these lands and property (including state court buildings and their adjacent parking lots) were neither "traditional public fora" nor "designated public fora," but were instead "nonpublic fora." See id. at 537-39. The court therefore addressed the question whether the trespass notices were a reasonable and viewpoint-neutral restriction of expressive activity, the test for evaluation of restrictions of expressive activity in nonpublic forums. See id. at 539-42. The court did not separately address Huminski's claim that the defendants violated his First Amendment right of access to judicial proceedings.
The district court concluded that there were genuine issues of material fact precluding the grant of summary judgment on the issue whether the trespass notices were viewpoint neutral. It therefore denied Predom's, Corsones's, and Zimmerman's motions for summary judgment with respect to Huminski's claims for monetary relief on the ground of qualified immunity. See id. at 539-40. The court reasoned that there was a genuine dispute as to whether the defendants' actions were motivated by security concerns or by disagreement with the views reflected on the signs on Huminski's van. Id. at 529. The court decided that some of the circumstances, such as the expression of concern about Huminski to Corsones by court staff at the Bennington District Court, supported the defendants' position. Id. at 529-30. But it also was of the view that countervailing considerations — such as the fact that Huminski had never before caused a disturbance relating to his criticism of Corsones and the fact that although Huminski had participated in many previous protests, he was cited for trespass the first time that he criticized Corsones — supported Huminski's position that these defendants violated his right to be free from governmental discrimination against him as a speaker based on disagreement with his viewpoint. Id. at 530-31. The court concluded that there was therefore a genuine dispute as to a material fact — viewpoint neutrality — that precluded summary judgment. Id. at 540.
But the court granted Elrick's motion for summary judgment as to Huminski's claims for monetary relief against Elrick in his personal capacity, concluding that he was entitled to qualified immunity. Id. at 542. The court reasoned that inasmuch as Elrick never saw Huminski's protest signs, he could not have engaged in viewpoint discrimination. Id. Even had Elrick seen the signs, moreover, Huminski "fail[ed] to demonstrate that a reasonable official in [Elrick's] position... would have known that the notices against trespass were `clearly' unreasonable." Id.
The court then denied Huminski's motion for partial summary judgment on his demands for monetary relief. See id. at 542. The court, now viewing the evidence most favorably to the defendants, decided that the trespass notices were reasonable in light of the purpose of the state court facilities and the availability of alternative means by which Huminski could have communicated his grievances. The court also said that Huminski had failed to demonstrate that "a reasonable official in Defendants' position — and therefore concerned about security in light of Huminski's presence — would have known that the notices against trespass were `clearly' unreasonable as a matter of law." Id. Because the court concluded that there was "no reasonable likelihood" that Huminski would succeed on the merits, it also dissolved its preliminary injunction. Id. at 542-43.
Subsequently, on August 22, 2002, the district court granted Huminski's motion to stay its dissolution of the preliminary injunction pending further proceedings. Huminski v. Rutland County Sheriff's Dep't, No. 1:99-CV-160, at 16-19 (D.Vt. Aug.22, 2002). It also granted Huminski's motion for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) of its summary judgment rulings. Id.; Huminski v. Rutland County Sheriff's Dep't, No. 1:99-CV-160 (D.Vt. Jan.16, 2003). We agreed to hear the appeal. Huminski v. Corsones, No. 03-6059 (2d Cir. Apr. 4, 2003).
Pursuant to the certification, Huminski appeals the district court's conclusion as to the reasonableness of the trespass notices under the First Amendment, the court's dissolution of the preliminary injunction, and the court's grant of summary judgment to Elrick. Corsones and Zimmerman appeal the district court's denial of their motion for summary judgment on the grounds of judicial immunity and qualified immunity. Predom appeals the court's denial of her motion for summary judgment on the ground of qualified immunity.14
DISCUSSION
I. Standard of Review
"We may overturn a district court's decision to dissolve a preliminary injunction only if it constitutes an abuse of discretion, which usually involves either the application of an incorrect legal standard or reliance on clearly erroneous findings of fact." SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharms., Inc.,
We review a district court's grant or denial of summary judgment de novo. World Trade Ctr. Props., L.L.C. v. Hartford Fire Ins. Co.,
II. Sovereign Immunity
In granting Sheriff Elrick's motion for summary judgment, the district court held that Elrick is immune from liability under section 1983 in his official capacity because he acted for the State of Vermont with respect to state courthouse security. Huminski III,
A. General Principles
"[N]either a State nor its officials acting in their official capacities are `persons' under [42 U.S.C.]§ 1983." Will v. Mich. Dep't of State Police,
On the other hand, "local government officials sued in their official capacities are `persons' under [42 U.S.C.] § 1983 in those cases in which ... a local government would be suable in its own name." Monell v. Dep't of Soc. Servs.,
Whether a defendant is a state or local official depends on whether the defendant represented a state or a local government entity when engaged in the events at issue. See McMillian v. Monroe County,
[O]ur inquiry is dependent on an analysis of state law. This is not to say that state law can answer the question for us by, for example, simply labeling as a state official an official who clearly makes county policy. But our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official's function under relevant state law.
Id. at 786,
B. The Status of Sheriffs under Vermont Law
Vermont Statutes Title Twenty-Four, Chapter Five, contains provisions regarding the powers and duties of sheriffs and sheriff's departments. It establishes a sheriff's department in each Vermont county. Vt. Stat. Ann. tit. 24, § 290(a). Each department consists of a sheriff elected by the people of the county and, as appointed by the sheriff, deputy sheriffs and supporting staff. Id.; see also Vt. Const. ch. II, § 50 (providing for the election of sheriffs by the voters of their respective districts). According to the statute, "[f]ull-time employees of the sheriff's department, paid by the county, [are] county employees for all purposes but [are] eligible to join the state employees retirement system, provided the county [pays] the employer's share." Vt. Stat. Ann. tit. 24, § 290(a).17
A sheriff's duties include preserving the peace. Id. § 299.18 The powers of sheriffs and their deputies with respect to criminal matters and law enforcement extend statewide. Id. §§ 307(c), 312. "The sheriff's department [is also] entitled to utilize all state services available to a town within the county." Id. § 290(a).
Sheriffs and full-time deputy sheriffs must provide Vermont's Commissioner of the Department of Finance and Management and their county clerk quarterly reports as to their compensation received as sheriffs. Id. § 290b(a); see also id. tit. 3, app., Exec. Order No. 3-11 (establishing the commissioner's position). Vermont's Auditor of Accounts has the power to audit each department's accounts at any time, receives information from the state's sheriff's departments and sheriffs about these accounts, establishes a uniform accounting system for these departments, and annually reviews the accounting records thereof. Id. tit. 24, §§ 290b(b)-(e); see also Vt. Const. ch. II, § 48 (requiring the Auditor of Accounts to be elected by the state's voters on the same ticket as the Governor).
A sheriff may enter into a written contract with the State of Vermont or a town within the relevant county "to provide law enforcement or other related services including, but not limited to, security services." Vt. Stat. Ann. tit. 24, § 291a(a).19
C. Sheriff Elrick's Assertion of Sovereign Immunity
Sovereign immunity, in these circumstances, operates only retrospectively. Elrick cannot benefit from such immunity with respect to his possible future behavior, with regard to enforcement of the trespass notices or otherwise. See Will,
We agree with the district court that an analysis of the relevant factors indicates that Sheriff Elrick was a state official with regard to his involvement in the events related to the issuance of the trespass notices. The Rutland County Sheriff's Department, for whom Elrick was employed, had a contract with the State of Vermont through the Vermont Court Administrator's Office to manage security at the Rutland District Court. We think that Elrick was acting as a state official while doing so and when he played a role in the issuance and service of the trespass notices.20
First, when Elrick was performing the contract, he was acting as a supervisory policymaker for the State of Vermont, irrespective of what his status was when he performed his other duties as a sheriff.
Second, it is undisputed that Elrick acted as a state official when he signed the May 27 Notice as the agent of the Commissioner, himself a state official.21
Third, although it is not necessary to decide the broader issue, we think that in light of the statutory structure under which Elrick acted, he was likely a state official when he was performing his general duties for the sheriff's department, particularly when he was acting pursuant to state law, as he was with respect to the Huminski incident. State statute establishes the most important factor in this inquiry, see McMillian,
He was therefore acting for the state when he engaged in the behavior that is at issue here. It follows that Elrick is immune in his official capacity from suit for retrospective relief. Because Elrick is entitled to sovereign immunity, we also affirm the district court's holding that the Rutland County Sheriff's Department is similarly immune. Neither of these defendants is immune, however, from injunctive or other prospective relief for an ongoing violation of federal law. See Ex parte Young,
III. Judicial Immunity
The district court denied the motion by Judges Corsones and Zimmerman for summary judgment in part because of its conclusion that they were not entitled to judicial immunity. Corsones and Zimmerman maintain that the district court erred in so ruling because, in performing the acts that underlie Huminski's claims, they were acting within their judicial capacities to protect court security and court operations. They also assert that Huminski's dealings with the judges were in their judicial capacities with respect to the issuance of the trespass notices. Huminski replies that neither Corsones nor Zimmerman acted in her judicial capacity but instead each acted in her administrative capacity, and, similarly, that Huminski's dealings with the judges were not in their judicial capacities. He asks us to conclude that they are therefore not protected by judicial immunity.
We ultimately conclude that Corsones and Zimmerman are entitled to qualified immunity with respect to their behavior relating to the issuance of the Notices Against Trespass in connection with Huminski's claim that they violated his First Amendment right of access to the courthouse, but that they would not, as a matter of law, be qualifiedly immune with respect to his claim that they violated his First Amendment right to criticize public officials. See infra sections IV.A.4, IV.B.2. Inasmuch as they are not shielded by qualified immunity from prospective relief and are not protected by such immunity from monetary relief with respect to Huminski's free-expression claims, we must consider their assertion that judicial immunity protects them.
A. General Principles
Judicial immunity has been created both by statute and by judicial decision "for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences." Pierson v. Ray,
"Imposing ... a burden [of exposure to liability] on judges would contribute not to principled and fearless decision-making but to intimidation."
may well be induced to act with an excess of caution or otherwise to skew their decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide their conduct. In this way, exposing [judges] to the same legal hazards faced by other citizens may detract from the rule of law instead of contributing to it.
Forrester v. White,
In furtherance of these ends, "in any action brought against a judicial officer [pursuant to 42 U.S.C. § 1983] for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. § 1983;23 see also Montero v. Travis,
Judges are, of course, immune from liability for damages under many circumstances. See, e.g., Pierson,
[T]he necessary inquiry in determining whether a defendant judge is immune from suit [for damages] is whether at the time he took the challenged action he had jurisdiction over the subject matter before him.... [T]he scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability ... when he has acted in the clear absence of all jurisdiction.
Stump,
A judge is not protected under the doctrine of judicial immunity, however, if the action in question is not judicial in nature, as when the judge performs an administrative, legislative, or executive act. See Stump,
We do not examine the particular act at issue but the nature and function of the act; "if only the particular act in question were to be scrutinized, then any mistake of a judge in excess of his authority would become a `non-judicial' act, because an improper or erroneous act cannot be said to be normally performed by a judge." Mireles,
At the margins, it can be difficult to distinguish between those actions that are judicial, and which therefore receive immunity, and those that happen to have been performed by judges, but are administrative, legislative, or executive in nature. Forrester,
By contrast, "[a] judge's direction to court officers to bring a person who is in the courthouse before him is a function normally performed by a judge. [Such a person], who was called into the courtroom for purposes of a pending case, was dealing with [the judge] in the judge's judicial capacity." Mireles,
B. Judge Corsones's and Judge Zimmerman's Assertion of Judicial Immunity
We look to state law to determine whether Corsones and Zimmerman acted within their jurisdiction and to inform our inquiry as to whether they acted, and Huminski dealt with them, in their judicial capacities. See Stump,
Under Vermont law, the Vermont state courts have jurisdiction over the security of courthouse buildings or spaces where a court is housed,24 while the Vermont Commissioner of Buildings and General Services has responsibility for the security of the lands of such courts. See Vt. Stat. Ann. tit. 29, § 171.25 Vermont law also allows state courts to take certain actions to "secure both the proper transaction and dispatch of business and the respect and obedience due to the court and necessary for the administration of justice." State v. Allen,
We conclude in light of the foregoing that Corsones is immune 1) under 42 U.S.C. § 1983, from Huminski's suit insofar as it seeks injunctive relief, provided declaratory relief remains available, and she has not violated a previous declaratory judgment, and 2) under the judicially established judicial-immunity doctrine, from Huminski's suit insofar as it seeks monetary relief with respect to her role in the issuance of the May 24 and May 27 Notices.
First, Corsones did not act in the clear absence of jurisdiction. Vermont law grants its state courts the authority to ensure the security of their facilities. Judges also have substantial power to maintain the decorum and security of their courtrooms and the courthouses in which those courtrooms are located. Irrespective of her motives, which are irrelevant to this inquiry, Corsones therefore did not act in the clear absence of jurisdiction when she participated in a decision to issue to Huminski trespass notices barring him from certain state court buildings and lands, as set out in the notices.
Second, to the extent that she participated in a decision to issue the trespass notices, Corsones engaged in a judicial act because the general nature and function of her actions were substantially judicial. See Barrett,
It is immaterial, we think, that Corsones's actions occurred outside of a courtroom inasmuch as they were directed at barring Huminski therefrom. See id. ("It would make little sense, and only promote form over substance, for us to say that a judge's response in redressing threatening conduct which she physically observes (e.g., contempt) is entitled to the cloak of judicial immunity, but her action in redressing a threat arising in reaction to her adjudicatory actions which she is told of by others is not entitled to the same level of immunity."). We thus agree with the Sixth Circuit: "[I]n circumstances in which a judge reasonably perceives a threat to himself or herself arising out of the judge's adjudicatory conduct, the judge's response, be it a letter to a prosecutor or a call to the Marshall's office for security, is a judicial act within the scope of judicial immunity." Id.
Third, Huminski's interactions with Corsones were essentially in her judicial capacity. He dealt with her while she was acting in that capacity when she presided over his criminal case. And Huminski's subsequent letters, complaints, and protests regarding the judge derived from and focused on Corsones's judicial performance in vacating his plea agreement. See id. at 260.
Finally, the principles underlying judicial immunity suggest that Corsones's actions should be protected. Exposing her to liability for her part in the decision to issue the trespass notices in response to Huminski's activities, which were in response to her judicial decisions in a case before her, would be inconsistent with the protection of the independence of her decisionmaking. A judge cannot be expected regularly and dispassionately to make decisions adverse to overtly hostile parties if subsequent actions to protect herself, her staff, and those in her courthouse from such hostility may result in the rigors of defending against — and even the possibility of losing — lengthy and costly litigation.26
We conclude, for substantially the same reasons, that Zimmerman is also entitled to judicial immunity.
The first justification for granting Corsones immunity applies equally to Zimmerman. She, too, acted pursuant to Vermont law in ensuring the security of the courthouse. She thus did not act in the clear absence of jurisdiction in issuing the Notices Against Trespass barring Huminski from the court buildings and grounds.
Second, Zimmerman's actions should be considered judicial acts insofar as there was a nexus between those acts and Huminski's criminal case before the state district court. The security measures she took, as a judge protecting the courthouse against a threatening litigant, which we have concluded were judicial when performed by Corsones, did not become any less judicial because the litigant previously appeared before a different judge. This is particularly so here, where the litigant in question forced the original judge who presided at his trial to recuse herself by filing complaints about the type of conduct that lies at the heart of the judicial function.
Third, and again following our analysis regarding Corsones, Zimmerman's actions with regard to Huminski were essentially in her judicial capacity. Once Corsones removed herself from the situation to avoid a potential conflict, it was likely that another judge would step in. Zimmerman's actions in this matter were thus entirely an outgrowth of her duties as a judge. Zimmerman, too, is thus immune.
Finally, there is some doubt whether Zimmerman was acting in Corsones' place when Zimmerman signed the May 27 Notice Against Trespass. We do not, however, endorse a rule under which a judge who dealt with proceedings involving a vexatious litigant would receive judicial immunity, but another judge called upon to intercede and replace the original judge with respect to the matter could not do so without exposing herself to suit and possible liability. The principles underlying judicial immunity, we think, would require that such a second judge be equally protected with the first.
IV. The Alleged First Amendment Violations
Viewing the facts in the light most favorable to Huminski, the district court denied the motions by Judge Corsones, Judge Zimmerman, and Karen Predom for summary judgment with respect to Huminski's claims that his First Amendment right of access to the Rutland courthouses to attend court proceedings and his First Amendment right to free expression were violated by the defendants. The court so ruled on the basis that there were genuine issues of material fact as to whether the trespass notices issued to Huminski were viewpoint neutral. The court nonetheless granted Sheriff Elrick's motion for summary judgment with regard to these claims because it concluded that Elrick could not have engaged in viewpoint discrimination.
The remaining defendants argue that they are entitled to qualified immunity with respect to Huminski's First Amendment claims for damages because (1) Huminski did not suffer a deprivation of his First Amendment rights as a result of the issuance and service of the trespass notices because they were motivated strictly by security concerns and because he suffered no actual injury as a result, and (2) the defendants did not violate any clearly established constitutional right. We have concluded that Corsones and Zimmerman are entitled to judicial immunity. It is therefore not necessary for us to decide whether they are also protected by qualified immunity. We discuss their qualified immunity, however, in the course of considering whether Predom and Elrick (insofar as he is sued in his personal capacity), who are not protected by judicial immunity, are qualifiedly immune.27
"The doctrine of qualified immunity shields government officials from liability for damages on account of their performance of discretionary official functions insofar as their conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known." Shechter v. Comptroller of the City of New York,
To be entitled to qualified immunity, the defendants therefore have the burden of proving, first, that their conduct fell within the scope of their official duties. Shechter,
A. Right of Access to Courts
1. The Right of Access to Judicial Proceedings. The Constitution affords at least two bases for a right of access to courtrooms, judicial proceedings, and judicial records. One is grounded in the Sixth Amendment right to a public trial, the other in the First Amendment rights of freedom of speech and of the press.28
The Sixth Amendment guarantees a defendant in a criminal case the right to a public trial principally to protect the defendant from prosecutorial and judicial abuses by permitting contemporaneous public review of criminal trials. See Waller v. Georgia,
Huminski does, however, have a viable claim under the First Amendment as applied to the State of Vermont through the Fourteenth. "For many centuries, both civil and criminal trials have traditionally been open to the public." Id. at 386 n. 15,
The law plays a pervasive role in our society, and the trial is its most visible manifestation. Where for lawyers the law is found in the reporters, treatises, and statutes, for the public the epitome of legal drama is the trial. Celebrated trials compete for space in the newspapers, inspiring countless repetitions and revisions in novels, on television, and in the movies. For the general public it is in these cases ... that the law itself is on trial, quite as much as the cause which is to be decided. Holding court in public thus assumes a unique significance in a society that commits itself to the rule of law.
Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv. L.Rev. 1899, 1923 (1978) (footnotes, alterations, and internal quotation marks omitted) [hereinafter Trial Secrecy]. Therefore,
there is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.
Gannett Co.,
A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society's [judicial] process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing people to observe it.
Richmond Newspapers, Inc.,
Based on the history and purposes of maintaining public access to court proceedings, "a presumption of openness inheres in the very nature of a ... trial under our system of justice." Richmond Newspapers, Inc.,
2. The Individual's Right of Access to the Courts. Both the Supreme Court and this Court have with some frequency articulated principles regarding the First Amendment right of access to court proceedings and papers. But, remarkably, the parties do not point us to, nor have we ourselves found, a Supreme Court or Second Circuit opinion that has discussed this right in the context of the exclusion of an identified individual member of the public or press, rather than the barring of the public or the press at large, from court proceedings to which that individual is not a party. Cf. Beerman,
First, the rights accorded by the First Amendment provide quintessential protection for the individual. In fashioning principles of access rights to the courts under the First Amendment, the Supreme Court has therefore apparently assumed that such rights are personal and may be asserted by an identified excluded individual. See, e.g., Globe Newspaper Co.,
Second, the exclusion of any person undermines right-of-access principles in much the same way, if not to the same extent, as a blanket denial of access does: You cannot "foster[ ] an appearance of fairness," Globe Newspaper Co.,
A person singled out for exclusion from the courtroom, who is thereby barred from first-hand knowledge of what is happening there, moreover, is placed at an extraordinary disadvantage in his or her attempt to compete in the "marketplace of ideas" about the conduct of judges and the judicial system. Cf. Anderson v. Cryovac, Inc.,
Exclusion of an individual reporter also carries with it "[t]he danger [that] granting favorable treatment to certain members of the media ... allows the government to influence the type of substantive media coverage that public events will receive," which effectively harms the public. Anderson,
Finally, as the names of the cases in which the principles of access to courtrooms and court records have emerged demonstrate, the system of public justice depends on the willingness and ability of individual persons and entities to police the system by seeking access — through litigation if necessary — to courtrooms and court records that have been closed. Such a plaintiff cannot be expected to act out of pure altruism; access will likely be sought at least in part for the plaintiff's own purposes: in the case of a press organization, to obtain news and information for its dissemination to its audience. It seems doubtful to us, for example, that the Press-Enterprise Company would have litigated two court-access cases through the California court system to the Supreme Court, Press-Enterprise Co. v. Superior Court,
Huminski, we therefore conclude, had and has a presumed right of access to the state courthouses in Rutland.32
We note that the United States Court of Appeals for the Tenth Circuit seems to have suggested a different outcome in United States v. McVeigh,
3. Overcoming the Presumption of Access. What is called the "right" of access is, however, only a presumption of access. The Supreme Court has established the standard for measuring the constitutional propriety of a judicial court closure at the behest of a party to the proceedings despite the existence of that presumption.
[T]he circumstances under which the press and public can be barred from a ... trial are limited; the State's justification in denying access must be a weighty one.... [I]t must be shown that the denial is necessitated by a compelling ... interest, and is narrowly tailored to serve that interest.
Globe Newspaper Co.,
A court must, moreover, "consider whether alternatives were available to protect the interests of the [persons] that the... court's orders sought to guard" for a closure to be found constitutional. Press-Enterprise II,
Finally, when it is a court that determines "that closure is warranted, it should devise a closure order that, while not necessarily the least restrictive means available to protect the endangered interest, is narrowly tailored to that purpose." Id. (citations omitted); cf. ABC, Inc. v. Stewart,
To resolve this appeal, we must therefore determine what demonstration the defendants were required to make to overcome Huminski's presumption of access. We conclude that the showing was not a burdensome one in these circumstances.
As we have noted, "[w]hen limited closure ... is at issue, the prejudice asserted need only supply a `substantial reason' for closure." Doe,
Plainly, though, closing the courtroom door must in fact be substantially motivated by such an appropriate consideration. A professed security concern cannot, for example, be used to mask an improper reason for closing the courtroom door, most particularly aversion to the views of the person who seeks access. Avoidance of such viewpoint discrimination is, of course, at the heart of much First Amendment protection. See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va.,
We also think that the requirement that the reasons for an official's denial of access to a member of the public or press to the courtroom "be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered," Press-Enterprise I,
We need not, however, determine the precise boundaries of constitutionally appropriate official behavior here. For there is, in addition to the requirements that the reasons for exclusion be constitutionally appropriate and that there be findings at least in some circumstances, a requirement that restrictions on court access be "narrowly tailored" to meet the reasons for closure. Globe Newspaper Co.,
We assume for these purposes that the defendants were justified in barring Huminski from the Rutland District Court courthouse on the morning of May 24, 1999. And in the context of daily efforts to protect the safety and operations of courts, we understand that "narrow tailoring" will not necessarily meet the standards of Savile Row. But here, there was virtually no "tailoring" at all. The means the Vermont officials chose to safeguard the courts from whatever threat they may have reasonably feared from Huminski were wildly disproportionate to the perceived threat.
The Notices Against Trespass bar Huminski from the state courthouses of Rutland and their grounds indefinitely and virtually completely. As far as we can tell, with at most an exception for litigation to which Huminski is a party, he cannot ever attend any criminal or civil proceedings there. Because the exclusion effected by the trespass notices was plainly overbroad in light of its duration, geographical scope, and scope of proceedings covered, we conclude that the exclusion was not "tailored" to the threat and is therefore unconstitutional. Cf. Gannett Co.,
4. Qualified Immunity. We conclude, however, that the defendants are entitled to qualified immunity with respect to this closure. At the time that the Notices Against Trespass were issued to Huminski, his personal right of access was not clearly established. A right is "clearly established" if its "contours ... [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton,
We have pointed out at some length why it is clear to us that Huminski had a personal right of access to the Rutland courts. We have also noted, however, that we can find no Supreme Court or previous Second Circuit authority that actually decides this issue and thereby establishes that the First Amendment right of access to judicial proceedings or courthouses is violated when one identified person, rather than the public or press at large, is excluded from judicial proceedings.34 The defendants therefore are not liable for damages to Huminski for their violation of his First Amendment right of access and, to that extent, the district court erred in denying their motion for summary judgment.
We therefore vacate the district court's denial of Huminski's motion for summary judgment for violation of his First Amendment right of access insofar as it relates to declaratory and permanent injunctive relief, and remand with instructions that the district court enter summary judgment for Huminski in that regard and fashion such prospective relief as is appropriate. See African Trade & Info. Ctr., Inc. v. Abromaitis,
B. Right of Free Expression
Huminski complains of the restrictions that the Notices Against Trespass place on his ability to express himself in and about the Rutland courthouse. We think that the district court properly denied the motions of Corsones, Zimmerman, and Predom seeking summary judgment on this claim on the ground of qualified immunity. We also think that the district court incorrectly granted Elrick's motion for summary judgment on this claim on the ground of qualified immunity. Moreover, we determine, after viewing the facts in the light most favorable to the defendants, that the district court erred in deciding that the trespass notices constituted a reasonable restriction on Huminski's expressive activity. We therefore conclude that the district court erred in denying Huminski's motion for summary judgment in this regard.
1. Forum Analysis. In determining whether the First Amendment protects particular speech on government property, we must first examine the nature of the forum in which the speaker's speech is restricted. Forums may be public, either by tradition or by designation, or nonpublic. The category of the forum determines the appropriate test for weighing "the Government's interest in limiting the use of its property to its intended purpose [against] the interest of those wishing to use the property for other purposes." Cornelius v. NAACP Legal Def. & Educ. Fund,
"Traditional public fora are those places which by long tradition or by government fiat have been devoted to assembly and debate." Id. at 802,
However, "[w]e will not find that a public forum has been created in the face of clear evidence of a contrary intent, nor will we infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity." Cornelius,
Publicly owned or operated property does not become a "public forum" simply because members of the public are permitted to come and go at will. Although whether the property has been generally opened to the public is a factor to consider in determining whether the government has opened its property to the use of the people for communicative purposes, it is not determinative of the question.
Grace,
In a forum that is not for either reason public, governmental restrictions on expressive conduct or speech are constitutional so long as they are reasonable in light of the use to which the forum is dedicated and "are not an effort to suppress expression merely because public officials oppose the speaker's view." Cornelius,
Measuring the facts of this case against these principles, we conclude that insofar as the trespass notices exclude Huminski from Rutland's courthouses, court lands, and parking lots35 and to the extent that his communications were banned from other than public sidewalks, streets, or parks, see Grace,
The function of a courthouse and its courtrooms is principally to facilitate the smooth operation of a government's judicial functions. A courthouse serves
to provide a locus in which civil and criminal disputes can be adjudicated. Within this staid environment, the presiding judge is charged with the responsibility of maintaining proper order and decorum. In carrying out this responsibility, the judge must ensure that the courthouse is a place in which rational reflection and disinterested judgment will not be disrupted.... [T]he proper discharge of these responsibilities includes the right (and, indeed, the duty) to limit, to the extent practicable, the appearance of favoritism in judicial proceedings, and particularly, the appearance of political partiality.
Berner v. Delahanty,
We conclude, moreover, that Huminski has not shown that the parking lots adjacent to the courthouse (and the courthouse grounds generally) are public forums. Cf. Knolls Action Project,
Huminski argues unpersuasively that the parking lots are public forums because some of the motor vehicles within the lots have bumper stickers affixed to them endorsing political candidates. There is no showing that permitting these stickers to be in a parking facility reflects an affirmative intent of the state government to designate the lot as a public forum. Furthermore, as the district court correctly reasoned, the fact that Huminski has been able to engage in political protest on the grounds of the Bennington District Court or that some other protests took place adjacent to other state court facilities is not sufficient evidence of Vermont's intent to open all its courthouse grounds to public expression. Huminski III,
We therefore analyze the constitutionality of the restrictions in the trespass notices as applied to nonpublic forums by determining whether the notices constitute reasonable restrictions of expressive activity and are viewpoint neutral.
2. Reasonableness. The restrictions on Huminski's expression, in this case by the Notices Against Trespass, "need only be reasonable in light of the purpose of the forum and reflect a legitimate government concern." Gen. Media Communications, Inc.,
Chief among the reasons that incline us toward the view, contrary to the district court's, that the restrictions here in issue do not meet the test for reasonableness is the fact that they were incorporated into the far-reaching Notices Against Trespass. As distinct from a generally applicable municipal ordinance and like an injunction, the notices "carry greater risks of censorship and discriminatory application than do general ordinances. There is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally." Madsen v. Women's Health Ctr., Inc.,
The Notices Against Trespass in effect prohibit indefinitely any and all expressive activity in which Huminski might want to engage in and around Rutland state courthouses. These notices are thus pervasive enough to be viewed as creating a "First-Amendment-Free Zone" for Huminski alone in and around the Rutland courts. The defendants' singling out of Huminski for exclusion, thereby permitting all others to engage in similar activity in and around the courts, suggests to us that the trespass notices are not reasonable. Such broad restrictions are generally frowned upon even in nonpublic forums. Cf. Bd. of Airport Comm'rs v. Jews for Jesus, Inc.,
Because, even viewing the facts in the light most favorable to the defendants, we conclude that the trespass notices were unreasonable, we need not and do not reach the question of their viewpoint neutrality.36 Whether or not the notices were viewpoint neutral, they constituted an unreasonable restriction on Huminski's expressive activity in a nonpublic forum.
Our review thus suggests to us that the defendants violated Huminski's First Amendment right of free expression by issuing the trespass notices. The defendants are not entitled to qualified immunity with regard to this claim because this right was clearly established at the time that the defendants issued the trespass notices. Nor are they entitled to qualified immunity on the basis that "it was `objectively reasonable' for [them] to believe that [their] actions were lawful at the time of the challenged act[s]," Lennon v. Miller,
V. Injunctive Relief
We conclude that the district court abused its discretion in dissolving the preliminary injunction as to all defendants other than Corsones and Zimmerman, whom we have found to be immune currently from injunctive relief under 42 U.S.C. § 1983. Huminski has demonstrated both a likelihood of irreparable injury if the injunction is not granted, Bronx Household of Faith v. Bd. of Educ. of New York,
We reject Predom's argument that such injunctive relief is unwarranted against her on the ground that the relief is moot given her limited involvement in the issuance of the May 27 Notice and her position that the May 27 Notice superseded or voided the May 24 Notice. Whether or not the May 27 Notice superseded or voided the May 24 Notice, compare Huminski III,
We also reject the contention of Sheriff Elrick and the Sheriff's Department that the possibility of their future enforcement actions with respect to Huminski does not render them subject to an injunction. They argue that they cannot be participating in any ongoing violations of Huminski's rights because "[w]hen carried to its logical extreme, Huminski could amend his complaint to ... name all law enforcement officers in the State of Vermont since they all have the same duty and responsibility to enforce the judicially sanctioned trespass notice still in effect." Br. for Appellees Sheriff R.J. Elrick and Rutland County Sheriff's Department, at 31 (emphasis in original). We disagree both because it is uncontested that Elrick and the Sheriff's Department have an ongoing involvement in courthouse security in Rutland, and because it is not a prerequisite for relief against Elrick in the context of this case that Huminski seek relief against every other sheriff in Vermont.
Upon remand, the district court should consider whether, under present circumstances, permanent injunctive relief is required and, of course, the terms of any such injunction.
CONCLUSION
For the foregoing reasons, we conclude that (1) the district court correctly concluded that Sheriff Elrick is entitled to summary judgment with respect to any retrospective relief sought against him in his official capacity under the doctrine of sovereign immunity and that the Sheriff's Department is therefore similarly immune and similarly entitled to summary judgment; (2) to the extent the district court ruled that Elrick was otherwise immune in his official capacity, it erred in granting him summary judgment, because he is not entitled to immunity from prospective relief sought in his official capacity; (3) the district court erred in denying the motion by Judge Corsones and Judge Zimmerman for summary judgment with regard to monetary and injunctive relief in their personal capacities because they are entitled to judicial immunity; (4) construing the facts in the light most favorable to the defendants, the defendants violated Huminski's First Amendment right of access to state courts; (5) the defendants are nonetheless entitled to qualified immunity with regard to Huminski's claim for violation of his right of access, and the district court therefore erred in denying Predom's motion for summary judgment with regard to this claim; (6) the district court erred in holding, after construing the facts most favorably to the defendants, that the trespass notices are not unreasonable in light of Huminski's First Amendment right to express himself; (7) the defendants are not entitled to qualified immunity with regard to Huminski's free-expression claim, and the district court therefore did not err in denying Predom's motion for summary judgment as to this claim but did err in granting Elrick's motion for summary judgment as to this claim; and (8) the district court erred in dissolving the preliminary injunction with regard to the defendants, excepting Corsones and Zimmerman, who are protected from such an injunction by virtue of their judicial immunity under 42 U.S.C. § 1983.
We therefore affirm the district court's judgment in part, vacate it in part, and remand for further proceedings consistent with this opinion.
Notes:
Notes
Branzburg v. Hayes,
In December 2000, the Vermont Supreme Court reversed Corsones's judgment and dismissed the charges against HuminskiState v. Huminski,
As it is the policy of the State of Vermont to encourage and allow crimes to be committed against myself and my wife without fear of prosecution I must take the law into my own hands and initiate activities that will get national media attention. Vermont has ruined my life [;] perhaps my activities will prevent Vermont from doing the same to other oppressed individuals. Vermont's policies in violation of due process, equal protection of the law and a guarantee to a remedy at law have destroyed my life.... A State can not target an innocent citizen for destruction. When the smoke clears, the nation will wonder what went wrong in Vermont. Hopefully that inquiry will prevent you from doing this to someone else. [Huminski details his dissatisfaction with particular actions of the office of the Vermont Attorney General.]
.... You might achieve [the] goal of driving us out of Vermont (or killing us) and attaining my destruction, [but] not without a fight. The conflict has begun. My demise won't be in vain. There will be national publicity and an outside investigation. It[']s odd how people like you wonder why citizens form militias and arm themselves[;] now I know why. The government does target people for purely political reasons and the criminal justice system and law enforcement is a tool used by corrupt agencies to kill innocent civilians. For twenty months I have given the State multiple opportunities to prove that my assumptions in this letter were wrong[;] now it[']s time for action as the State has revealed that corrupt policies are in place at the highest levels.... No justice. No fairness. No constitution. No rights. Someone will be held accountable.
Corsones spoke with an agent of the Federal Bureau of Investigation about the situation. She testified that she thought that the FBI prepared a profile analysis of Huminski, but we find no such analysis in the record
The parties refer to Elrick as the Rutland County Sheriff in the caption of this appeal and their briefs before us. We adhere to their characterization, although the district court reported,Huminski v. Rutland County Sheriff's Dep't,
Schutt testified that he could see through the front window and underneath the van, and Beezup testified that he could see through the van's windows into the back of the van
Schutt wrote in a report, however, that Corsones asked that, for safety reasons, a Notice Against Trespass for the Rutland District Court, her residence, and her former law office be served on Huminski
Predom testified inconsistently both that she did not call law enforcement officials in this regard, and that she did
Based on his reading of this table, Schutt testified that Corsones herself had requested that the trespass notice be issued. No other involved party, however, either read the report that way or stated that Corsones had requested the issuance of the trespass notice
Emerick did not see Huminski's van when he arrived at the courthouse because he, like Corsones, entered on the side opposite the one where the van was parked
Emerick served Huminski with the May 24 Notice pursuant to Vt. Stat. Ann. tit. 13, § 3705(a)(1). According to section 3705:
A person shall be imprisoned for not more than three months or fined not more than $500.00, or both, if without legal authority or the consent of the person in lawful possession, he enters or remains on any land or in any place as to which notice against trespass is given by:
(1) Actual communication by the person in lawful possession or his agent or by a law enforcement officer acting on behalf of such person or his agent; or
(2) Signs or placards so designed and situated as to give reasonable notice.
Vt. Stat. Ann. tit. 13, § 3705(a) (emphasis added). This was the first Notice Against Trespass of the Rutland District Court that had been issued in at least five years.
The Bennington Superior Court, in which Huminski had multiple pending proceedings, is the only Vermont state court that has interpreted the May 27 Notice. It suggested that it read the May 27 Notice as incapable of being reasonably construed to cover any property outside of Rutland. It ruled that in any case, the May 27 Notice had no legal effect over the buildings, lands, and premises that make up the Bennington Superior Court
Huminski had originally also sued others, including the Bennington County Sheriff's Department, Sheriff Gary Forrest, Deputy Schutt, Officer Emerick, the City of Rutland, and the Rutland City Police Department. On August 31, 1999, the district court (J. Garvan Murtha,Judge) granted a motion to dismiss Huminski's claims against the Rutland City Police Department. On October 20, 1999, the district court granted a motion to dismiss all claims against the Rutland County Sheriff's Department, the Bennington County Sheriff's Department, Elrick, Forrest, and Emerick and granted a motion for judgment on the pleadings to Emerick and the City of Rutland. On July 20, 2000, we dismissed Huminski's appeal from these interlocutory orders due to the absence of appellate jurisdiction. Huminski v. Rutland City Police Dep't,
Huminski does not appeal the district court's recognition of Corsones's, Zimmerman's, and Predom's immunity with respect to retrospective relief in their official capacities
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
42 U.S.C. § 1983.
InMcMillian, the Supreme Court held that Alabama sheriffs were state officials, rather than county officials, because they were constitutionally members of the state executive department; were impeachable by state courts; were state officers for immunity purposes, according to state courts; were required to obey the orders of state courts, even those outside of their county; had complete authority to enforce the state criminal law in their counties; were required to present evidence to the county's district attorneys, who were state officials; were paid salaries set by the state, even though they were elected on a countywide basis; were required to submit accounting statements and funds to the county treasurer; were provided with equipment by the county; were paid salaries out of the county treasury; and had jurisdiction only within the county. McMillian,
By contrast, the State of Vermont pays the salaries of full-time deputy sheriffs whose primary job is to transport prisoners and mentally ill individuals. Vt. Stat. Ann. tit. 24, § 290(b)
Deputy sheriffs may also perform this and any of the sheriff's other official dutiesSee Vt. Stat. Ann. tit. 24, § 309.
According to Vermont law, the court officer for sessions of a state district court held in a territorial unit shall be a sheriff of any county in that unit, a constable, or an indifferent person, when necessary. Vt. Stat. Ann. tit. 4, § 446. With regard to participation in the judicial system, sheriffs and deputy sheriffs also have the authority to serve either civil or criminal process anywhere within the state and returnable to any courtId. tit. 12, §§ 691-692; see also id. tit. 24, § 293. Furthermore, they "shall receive all writs and precepts issuing from lawful authority at any time and place within their respective precincts... and shall execute and return the same agreeably to the direction thereof." Id. tit. 12, § 696; see also id. § 4854 (discussing specifically the sheriff's involvement in serving a writ of possession in an ejectment action); id. tit. 24, § 293.
We think this is true even if Elrick is a deputy sheriff in light of the fact that the state statute requires that deputy sheriffs be considered as employees of the sheriff's department when they are performing duties under such a contractSee Vt. Stat. Ann. tit. 24, § 291a(a).
See supra note 11.
Other considerations underlying judicial immunity include insulation of judges from political influence and the correctability of error on appealCleavinger v. Saxner,
In 1996, Congress amended section 1983 to enact this statutory immunity. Federal Courts Improvement Act of 1996, § 309(c), Pub.L. No. 104-317, 110 Stat. 3847, 3853 (1996) (amending 42 U.S.C. § 1983). Before the amendment, "a judge [wa]s not absolutely immune from ... a suit for prospective injunctive relief."Mireles v. Waco,
The Vermont district court, where these judges preside, is a court of general jurisdiction with regard to criminal prosecutionsSee Vt. Stat. Ann. tit. 4, §§ 439-441. Its jurisdiction over civil actions is more limited. See id. § 437.
The statute provides in relevant part:
The commissioner of buildings and general services shall be responsible for ensuring the security of all state facilities, regardless of funding source for construction or renovation, the lands upon which those facilities are located and the occupants of those facilities and places, except that:
(1) in those state-owned or state-leased buildings which house a court plus one or more other functions, security for the space occupied by the court shall be under the jurisdiction of the supreme court and security elsewhere shall be under the jurisdiction of the commissioner of buildings and general services;
(2) in those buildings which function exclusively as courthouses, security shall be under the jurisdiction of the supreme court; [and]
(3) the space occupied by the supreme court shall be under the jurisdiction of the supreme court[.]
Vt. Stat. Ann. tit. 29, § 171(a). Although the statute explicitly grants responsibility for courthouses only to the Vermont Supreme Court, the Vermont Supreme Court authorizes other Vermont state courts to act to "secure both the proper transaction and dispatch of business and the respect and obedience due to the court and necessary for the administration of justice." State v. Allen,
Cf. Learned Hand, The Deficiencies of Trials To Reach the Heart of the Matter, in 3 Ass'n of the Bar of the City of New York, Lectures on Legal Topics 89, 105 (1926) (musing that becoming a party to a lawsuit should be "dreaded ... beyond almost anything else short of sickness and death"), quoted in Simon DeBartolo Group, L.P. v. The Richard E. Jacobs Group, Inc.,
We think that Huminski's claims are ripe for our review despite the argument made by some of the defendants (1) that Huminski has not suffered any demonstrable injury from the trespass notices because no criminal action has been commenced against him based on them and (2) that he has he not yet been denied access to courthouse grounds on the basis of the notices. "[I]n the First Amendment context, the ripeness doctrine is somewhat relaxed."Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals,
"The Due Process Clause also requires the States to afford certain civil litigants a meaningful opportunity to be heard by removing obstacles to their full participation in judicial proceedings."Tennessee v. Lane,
Although an argument might be crafted that putative gadfly Huminski is an example of the "lonely pamphleteer" with a claim on "liberty of the press" posited by Justice White inBranzburg v. Hayes,
Although the Supreme Court has not yet ruled on the applicability of the constitutional presumption of access to civil cases, inRichmond Newspapers, where the Court first clearly recognized a First Amendment right of access to courts, six of the eight sitting Justices clearly implied that the right applies to civil cases as well as criminal ones. See Richmond Newspapers, Inc.,
Posr v. Court Officer Shield # 207,
Given the language of the trespass notices here at issue, we think that, contrary to the district court and in accordance with the views of the Bennington Superior Court, the trespass notices reached only to the state courthouses in Rutland, and not to all state courthouses in Vermont. Were we to adopt a broader construction of the scope of the trespass notices, however, it would not affect our analysis
We do not, in the foregoing analysis, mean to imply any change in our rules applicable to access to sealed documents as reflected in, for example,Gambale v. Deutsche Bank AG,
We find it instructive that at the time of the events in Rutland in 1999,Posr v. Court Officer Shield # 207,
As in our discussion of the right of access to court proceedings, we assume that the trespass notices extend only to the Rutland state courthouses and their grounds, rather than to state government buildings and lands statewide. It would not, however, fundamentally alter our analysis if the notices encompassed all state courthouses and their grounds
There are facts in the record that might raise the concern that Huminski was, at least in part, being punished for his political protests, or being prevented from continuing them, by his exclusion from Rutland courthouses and their premises. The district court concluded that it could not decide, as a matter of law, whether some of the defendants' actions with respect to Huminski were motivated by security concerns or arose out of their disagreement with the views that he wished to expressHuminski III,