American Civil Liberties Union v. Fordice, Civil Action No. J77-0047B.

969 F.Supp. 403

AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI, et al., Plaintiffs, v. Kirk FORDICE, et al., Defendants.

Civil Action No. J77-0047B.

United States District Court, S.D. Mississippi, Jackson Division.

May 31, 1994.

COPYRIGHT MATERIAL OMITTED

Shirley Payne, Horn & Payne, Jackson, MS, Barry H. Powell, Alston, Rutherford & Van Slyke, Jackson, MS, for American Civil Liberties Union of Mississippi, Inc.

Shirley Payne, Horn & Payne, Jackson, MS, for Delta Ministry, Owen Brooks, Ken Lawrence, Rims Barber.

Dixon L. Pyles, Sr., Pyles & Tucker, Jackson, MS, for Edwin King, John Salter.

Edward J. Peters, District Attorney's Office-7th Judicial District, Jackson, MS, Davis C. Scott, Jr., Office of the Attorney General, Jackson, MS, for Commissioner of Public Safety, Kirk Fordice.

MEMORANDUM OPINION AND ORDER

BARBOUR, Chief Judge.

This cause is before the Court on remand from the United States Court of Appeals for the Fifth Circuit for this Court to devise a remedy for opening the files of the now defunct State Sovereignty Commission ("the Commission") while balancing the competing interests of the "privacy Plaintiffs" and the "access Plaintiffs." Having considered the opinion of the Fifth Circuit and the supporting and opposing memoranda of all parties to this action, the Court finds that the files should be opened in accordance with the procedure set forth below.

I. Background

A. Procedural History and ACLU I

The detailed facts of this case are set forth in the previous opinion of this Court, American Civil Liberties Union v. Mabus, 719 F.Supp. 1345 (S.D.Miss.1989) ("ACLU I"), and will not be repeated at great length in this opinion. A brief summary of the facts and procedural history is necessary and relevant to the current issues before the Court. The Commission was created in 1956 as an agency of the State of Mississippi ostensibly "to protect the sovereignty of the State of Mississippi, and her sister states, from encroachment thereon by the Federal Government...." Miss.Code Ann. § 3-1-11 (1972). The understood purpose of the Commission, however, was to maintain racial segregation in the South despite orders to the contrary by the United States Supreme Court.¹ As the secret intelligence arm of the State, the Commission engaged in a wide variety of unlawful activity, thereby depriving the Plaintiffs of their constitutional rights to free speech and association, to personal privacy and to lawful search and seizure. The Commission also deprived Plaintiffs of rights protected by the statutes of the United States.

Deprivations were accomplished through unlawful investigations and through intentional actions designed to harass and stigmatize individuals and organizations engaged in speech and conduct protected by the United States Constitution. The targets of Commission activity were designated by members and agents of the Commission. There is no record that a search warrant or any other judicial sanction of Commission acts was either sought or received. The avowed intent of the Commission and its co-conspirators was to chill or preclude the Plaintiffs from speech, assembly, association, and the petition of government.

ACLU I, 719 F.Supp. at 1353.

In 1977, the Mississippi legislature voted to disband the Commission and directed that all Commission records be destroyed. The Plaintiffs in this action obtained an order prohibiting such destruction. The legislature reacted by enacting laws sealing the files until the year 2027. See Miss.Code Ann. § 39-5-61 (1972). After the vacation of an earlier denial of class certification by the judge to whom this case was originally assigned, this Court certified the Plaintiff class as

all natural persons, all not-for-profit associations and all unincorporated associations who, in or around the State of Mississippi, have been or continue to be subject to investigation, surveillance, intrusions or the dissemination of false and misleading information by agencies of the State of Mississippi or those acting in concert with said agencies.

ACLU I, 719 F.Supp. at 1351-52. In 1987, the Court subdivided the class "to assure its adequate representation." Id. at 1352. The subclasses include (1) the "access Plaintiffs," composed of persons whose members seek unlimited public access to the records of the Commission, and (2) the "privacy Plaintiffs," whose members seek access to the records for those named in the records, but who advocate no further access by other parties without the prior consent of each person or persons described in a particular record.

In ACLU I, this Court entered an Order which, inter alia, enjoined the State from enforcing the Mississippi statute which makes it a felony to release any information contained in the files, see Miss.Code Ann. § 39-5-63 (1972), and required the State to maintain the Commission files as any other public record according to state and federal law.² Id. at 1363; see also American Civil Liberties Union v. State of Mississippi, 911 F.2d 1066, 1068, reh'g en banc denied, 919 F.2d 735 (5th Cir.1990) ("ACLU II"). This Court attempted to balance the equities in ACLU I concluding that:

To open the files would further the general principle of informed discussion of the actions of government, while to leave the files closed would perpetuate the attempt of the State to escape accountability. Opening the files would also end public speculation as to the extent of the acts of the Commission, much of which has far exceeded the record.

719 F.Supp. at 1362. Recognizing the interests of the privacy Plaintiffs, the Court also ordered the Defendants in this matter to accept any rebuttal submitted by a class member regarding an allegation, charge or other information contained in the files concerning that class member, such rebuttal to become a part of the files to be indexed and cross-referenced accordingly. Id. at 1363.

B. ACLU II

The issue on appeal in ACLU II was the order of this Court that "all Commission files be disclosed and accessible to the general public." ACLU II, 911 F.2d at 1068. The Fifth Circuit vacated the opinion of this Court in ACLU I holding as follows:

The privacy plaintiffs have not requested, and we do not recommend, that the Commission's files remain entirely inaccessible to the public. We hold today only that on the record before us, complete and unfettered disclosure of the files does not give appropriate protection to the constitutional privacy interests of various persons in not having government-gathered sensitive personal information about them released.

ACLU II, 911 F.2d at 1066. The court reasoned that the privacy Plaintiffs have an interest in restricting the disclosure of information which must be balanced against the competing interest of the access Plaintiffs. Id. at 1070. The court described the competing interests of the various Plaintiffs in this action:

[W]e note first that because the public concern in this case is bringing to the public's attention the various activities of the Commission, the disclosure of a particular name would rarely, if ever, be necessary to enumerate and demonstrate the Commission's divers[e] dealings; the actual names of the Commission's victim's are much less a matter for public concern.... [T]he instant case concerns whether a court must order that (often unlawfully obtained) information in possession of the state must be released in its entirety even where, to the extent that that information is a matter of public concern, any public need to know could be satisfied by release of the information in a more limited format.

Id. at 1071. The court discounted the concerns of the access Plaintiffs and the Defendants regarding the cost of a limited disclosure system, concluding that because approximately three-fourths of the material in the Commission files has already been published, only about one-fourth of the material need be subject to access restrictions. Id. at 1074 n. 8.

C. Procedural History Since ACLU II

Several status conferences have been held and resulting Orders issued since the Fifth Circuit mandate on November 16, 1990. On March 12, 1991, the Court entered an Order granting access to the files to (1) personnel with the Mississippi Department of Archives and History ("MDAH") for the purpose of cataloguing the records, and (2) parties to this suit. In that Order, the Court required anyone seeking to view the documents to sign a confidentiality Oath, under penalty of contempt of court, acknowledging that any information contained in the Commission documents could not be communicated to third parties.³ Subsequent Orders indicate that MDAH has inventoried the contents of the Commission files, including noting which documents in the files are published documents. Much of the delay up to this point has been to allow MDAH to prepare an extensive index of the Commission files. An evidentiary hearing was held on September 20 and 21, 1993, and testimony was received concerning recommended procedures which might be used to open the Commission files as well as various practical problems which will exist. After this hearing, all parties submitted posthearing briefs concerning suggested solutions for balancing the competing interests involved in this action.

II. Analysis

A. Files Shall Be Presumptively Open

Many notable events have occurred since the opinion of this Court in ACLU I. Several newspaper articles were published in the major statewide daily newspaper, The Clarion Ledger, stating that the Commission had conducted jury research of the persons composing the juries in the first two murder trials of white supremacist Byron de la Beckwith,⁴ These articles, combined with other factors, prompted the District Attorney for the Seventh Circuit Court District to reopen the case and try Beckwith for a third time.⁵

On September 21, 1993, the Court conducted a portion of the hearing in chambers due to issues which arose during the testimony of Erle Johnston, former...