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Hamm v. Dunn

United States District Court, N.D. Alabama, Southern Division

May 30, 2018

DOYLE LEE HAMM, Plaintiff,
v.
JEFFERSON S DUNN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS; CYNTHIA STEWART, WARDEN, HOLMAN CORRECTIONAL FACILITY; LEON BOLLING, III, WARDEN, DONALDSON CORRECTIONAL FACILITY; OTHER UNKNOWN EMPLOYEES AND AGENTS, ALABAMA DEPARTMENT OF CORRECTIONS Defendants.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         On March 28, 2018, three non-party media entities (“the Intervenors”) moved to intervene and unseal judicial records in this case. (Doc. 107). The court granted the motion to intervene and ordered Defendants to respond to the motion to unseal. (Doc. 111). In their response, Defendants moved for reconsideration of this court's order granting the Intervenors' motion to intervene. (Doc. 119 at 15). Accordingly, this matter is before the court on the Intervenors' motion to unseal judicial records (doc. 107) and Defendants' motion for reconsideration of their intervention (doc. 119 at 15).

         The court WILL DENY Defendants' motion for reconsideration because the court concludes that the Intervenors have demonstrated that intervention is proper. The court WILL GRANT the Intervenors' motion to unseal because the public has a common law right of access to the sealed records relating to Alabama's lethal injection protocol.

         I. BACKGROUND

         On December 13, 2017, Doyle Lee Hamm filed a complaint challenging the constitutionality of Alabama's method of execution as applied to him. (Doc. 1). He also sought a preliminary injunction to prevent his execution, which the Alabama Supreme Court had set for February 22, 2018. (See Doc. 30 at 5). Defendants moved for summary judgment on the complaint. (Doc. 12). Because of the very short period of time between Mr. Hamm's filing of the complaint and the scheduled execution, the court ordered expedited briefing and, on January 31, 2018, held a hearing on Mr. Hamm's request for injunctive relief and Defendants' motion for summary judgment. (See Doc. 30 at 5-6).

         At a pre-hearing status conference in chambers, the court notified the parties that it would need to review Alabama's lethal injection protocol. Defendants agreed to produce the protocol for the court's in camera review before the hearing, and also agreed to provide Mr. Hamm's attorney with a redacted copy of the protocol, subject to a confidentiality agreement. On January 30, 2018, the parties filed a joint motion for a protective order (doc. 26), and the court entered the Agreed Confidentiality Order (doc. 28). That Order provided that the parties and their counsel had agreed to keep the protocol and the information contained within the protocol confidential. On January 31, 2018, Defendants provided paper copies of the lethal injection protocol to the court and a redacted version to Mr. Hamm's attorney.

         The morning session of the January 31 hearing dealt with Defendants' motion for summary judgment, and the afternoon session dealt with Mr. Hamm's request for preliminary injunctive relief. (See Doc. 52 at 3, 70-74). Because part of the afternoon session revolved around the confidential lethal injection protocol, the court conducted that part of the hearing in camera, and the transcript of that part of the hearing remains sealed. (See Doc. 53). The audience present during the public parts of the hearing included members of the press.

         On February 6, 2018, the court entered a memorandum opinion and order reserving ruling on Mr. Hamm's request for preliminary injunctive relief, denying Defendants' motion for summary judgment, and staying Mr. Hamm's execution to allow time for an independent medical examination. (Docs. 30, 31). Defendants appealed the court's grant of a stay, and on February 13, 2018, the Eleventh Circuit vacated the stay of execution and remanded with instructions for the court to immediately appoint an independent medical expert and to make factual findings regarding Mr. Hamm's still-pending motion for injunctive relief by no later than February 20, 2018. (Doc. 38). Meanwhile, Mr. Hamm's execution was still scheduled to take place on February 22, 2018.

         In compliance with the Eleventh Circuit's instructions, the court appointed an independent medical expert, who conducted an examination of Mr. Hamm. (Doc. 75). The Intervenors' motion to unseal records does not relate to the identity of the independent medical expert, and all identifying information about the expert will remain sealed.

         On February 16, 2018, the court held another hearing, which the court closed to the public to protect the identity of the independent medical examiner and the confidentiality of the lethal injection protocol, both of which the court anticipated the parties would discuss extensively at the hearing. At that hearing, the court denied Mr. Hamm's request for preliminary injunctive relief based on the medical exam and certain representations from Defendants. (See Doc. 58-2). The court followed with a memorandum opinion and order on February 20, 2018. (Id.).

         On February 22, 2018, the State unsuccessfully attempted to execute Mr. Hamm. On March 26, 2018, Mr. Hamm filed a second amended complaint, and on the same day, the parties stipulated to the dismissal of the case. (Docs. 103, 104). Two days later, on March 28, 2018, the court dismissed the case. (Doc. 105).

         On March 28, 2018, the same day that the court dismissed the case, the Intervenors filed their motion to intervene and to unseal the lethal injection protocol and other court records relating to the protocol. (Doc. 107). On March 30, 2018, the court granted the motion to intervene, under Federal Rule of Civil Procedure 24(a)(2), but reserved ruling on the motion to unseal. (Doc. 111). Defendants opposed the motion to unseal, and also sought reconsideration of the court's order granting the motion to intervene. (Doc. 119 at 15).

         II. DISCUSSION

         1. Defendants' Motion for Reconsideration

         The Intervenors moved to intervene “to vindicate constitutional and common law claims for access to court records.” (Doc. 108 at 14). The court granted the motion to intervene two days after the Intervenors filed it, without requiring a response from Defendants. (Doc. 111). Now, Defendants seek reconsideration of the order granting intervention. (Doc. 119 at 15-19).

         “[R]econsideration of an order is an extraordinary remedy and is employed sparingly.” Rueter v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 440 F.Supp.2d 1256, 1267-68 (N.D. Ala. 2006). Reconsideration is available only “when a party presents the court with evidence of an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice.” Summit Med. Ctr. of Ala., Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D. Ala. 2003). But because this court did not afford Defendants an opportunity to respond to the motion to intervene, Defendants have not presented any of their arguments before, so the court will consider their arguments as if they had made them in the first instance.

         The Intervenors did not identify whether they sought to intervene under Federal Rule of Civil Procedure 24(a), which governs intervention of right, or Rule 24(b), which governs permissive intervention. The court granted intervention of right under Rule 24(a). (Doc. 111). Rule 24(a)(2) provides that the court must permit intervention by anyone who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” But even if the Intervenors were not entitled to intervene as of right under Rule 24(a), they were entitled to intervene under Rule 24(b). See Flynt v. Lombardi, 782 F.3d 963, 967 (8th Cir. 2015) (“[P]ermissive intervention under Rule 24(b) is an appropriate procedural vehicle for non-parties seeking access to judicial records in civil cases.”) (footnote omitted).

         In granting the motion to intervene, the court found that the motion was timely because the Intervenors filed it within two months of the court docketing the Agreed Confidentiality Order and just hours after this court closed the case. (Doc. 111 at 2). The court also found that the Intervenors had an interest in the “matter of intense public interest: the method by which the State of Alabama exercises the power to put people to death, ” and that the parties did not adequately represent that interest. (Id.). Defendants contend that the motion was not timely and denial of intervention would not impede Intervenors' interest in accessing the lethal injection protocol. (Doc. 119 at 15-19).

         In considering the timeliness of a motion to intervene, the Eleventh Circuit explained:

A district court must consider four factors . . ., namely (1) the length of time during which the would-be intervenor knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; (2) the extent of prejudice to the existing parties as a result of the would-be intervenor's failure to apply as soon as he knew or reasonably should have known of his interest; (3) the extent of prejudice to the would-be intervenor if his petition is denied; and ...

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