Eaglin v. Sterling et al

Filing 218

ORDER overruling the plaintiff's 178 objection. Signed by Magistrate Judge Paige J. Gossett on 8/16/2017. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Adrian T. Eaglin,

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Plaintiff,
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v.
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McCall, Sergeant,
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Defendant.
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_____________________________________ )

C/A No. 0:14-4003-PJG

ORDER

This matter is before the court on remand following the plaintiff’s appeal from a jury trial
in his civil rights action that resulted in a verdict for the defendant. By order and opinion entered
May 10, 2017, the United States Court of Appeals for the Fourth Circuit affirmed the judgment but
vacated this court’s docket text order overruling the plaintiff’s written objection regarding jury
questionnaires and remanded “for further proceedings on this issue.” (See Opinion, ECF No. 215;
Docket Text Order, ECF No. 179; Plaintiff’s Objection, ECF No. 178.) The mandate issued July
10, 2017.
The issue back before the court stems from the plaintiff’s challenge to what he characterizes
as the “sealing” of juror questionnaire responses. After the issuance of the court’s standard trial
notice and instructions (ECF No. 170), the plaintiff filed a “Notice of Objection to Sealing Jury
Questionnaires,” in which he stated: “This Court makes jury questionnaires sealed as a matter of
course, including the questionnaires in this case. . . . Mr. Eaglin respectfully objects that it is a

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violation of statutory law and First Amendment to preclude public access to jury questionnaires that
substitute for questioning of the venire in open court.” (ECF No. 178.)1
In accordance with the instructions from the Fourth Circuit, the court reaffirms that the
plaintiff’s objection should be overruled. The plaintiff’s objection rests on two faulty premises:
contrary to his characterization, the jury questionnaires at issue have not been “sealed”;2 nor has
public access been “precluded.” Rather, access to the jury questionnaire responses has been
governed and permitted pursuant to the terms of 28 U.S.C. §§ 1861, et seq. and the District of South
Carolina’s Jury Plan, which was promulgated pursuant to that statute and approved by the Fourth
Circuit Judicial Council. See 28 U.S.C. §§ 1861, et seq.; In re Amended Jury Selection Plan for the
Random Selection of Grand and Petit Jurors, No. 3:14-mc-338-TLW (D.S.C. Nov. 19, 2014) (ECF
No. 2).
Pertinent here, § 1863(b)(7) requires a jury plan to “fix the time when the names drawn from
the qualified jury wheel shall be disclosed to the parties and to the public.” 28 U.S.C. § 1863(b)(7).
The statute specifically states: “If the plan permits these names to be made public, it may
nevertheless permit the chief judge of the district court, or such other district court judge as the plan
may provide, to keep these names confidential in any case where the interests of justice so require.”

1

The court notes that the plaintiff’s objection is directed only toward the voir dire questions
in the written generic questionnaires. Additional, case-specific voir dire as well as follow-up
questions to juror written questionnaire responses were propounded in open court at jury selection.
2

After the conclusion of the trial, the plaintiff moved that the questionnaire responses of the
eight jurors who actually served on the petit jury be placed in the record as sealed entries for
purposes of appellate review. The court granted that motion. That appeal now having been
concluded, the court directs the Clerk of Court to maintain those questionnaires in the same manner
in which it maintains the questionnaires of the other venire members in accordance with the Jury
Plan for the District of South Carolina, as approved by the Fourth Circuit Judicial Council. See In
re Amended Jury Selection Plan, No. 3:14-mc-338-TLW (D.S.C. Nov. 19, 2014) (ECF No. 2).
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Id. Section 1867(f) pertinently requires that the contents of records or papers used by the clerk in
connection with the jury selection process shall not be disclosed, except pursuant to the district
court’s plan. 28 U.S.C. § 1867(f).
Pursuant to those provisions, the Jury Plan for the District of South Carolina similarly
provides, in pertinent part:
DISCLOSURE OF JUROR NAMES AND RECORDS: Names drawn from the
qualified jury wheel for petit juries will be available to counsel or a party if
proceeding pro se with cases on the relevant trial roster who present an approved
request form seven calendar days before the jurors are to appear at the courthouse,
provided that the Chief Judge may order the names to be kept confidential in a case
or cases when the interest of justice so require. . . .
The contents of records or papers used by the Clerk of Court or her designee
in connection with the jury selection process, including juror qualification
questionnaires, shall not be disclosed to anyone other than court personnel except as
provided in 28 U.S.C. § 1867(f) and in this Plan. The district’s comprehensive
questionnaire completed by prospective jurors and the jury list are excluded from this
disclosure provision with the responses distributed in accordance with the court’s
Local Rules.
Names of trial jurors shall not be disclosed to the public or media outside of
open court, except upon order of the court. A request for disclosure of petit juror
names to the public or media must be made to the presiding judge. . . .
See In re Amended Jury Selection Plan, No. 3:14-mc-338-TLW (ECF No. 2-1 at 5-6).3
Thus, the Plan fixes the time, as required by the statute upon which the plaintiff relies, for
disclosure of the names drawn from the qualified jury wheel to the parties and the public—seven
calendar days before jury selection. Further, contrary to counsel’s characterization that the
questionnaire responses are “sealed,” the Plan specifically excludes the comprehensive

3

The 2014 Plan was in effect at the time of trial. The District’s Plan was amended by the
court in April of 2017, and again approved by the Fourth Circuit Judicial Council in June of 2017.
With minor revisions, the 2017 Plan leaves intact the procedure at issue here. See In re Amended
Jury Selection Plan for the Random Selection of Grand and Petit Jurors, No. 3:17-mc-147-TLW
(D.S.C. June 12, 2017) (ECF No. 2).
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questionnaires completed by prospective jurors from the provision prohibiting disclosure and
expressly provides for their disclosure and distribution in accordance with the court’s Local Rules.
The District of South Carolina’s Local Rules in turn provide as follows:
Use of Juror Questionnaires. The court may require potential jurors to respond to
written questionnaires and may make the responses available to counsel or parties
with cases on the relevant trial roster seven (7) days prior to jury selection. Counsel
or any other persons obtaining juror questionnaire responses must ensure that the
information contained therein is utilized solely for the purpose of evaluating potential
jurors for a pending case and is not disseminated for any other purpose. The clerk
of court shall institute procedures to draw these requirements and responsibilities to
the attention of persons obtaining the questionnaire responses by completing the
Juror Questionnaire and List Request form. Any person desiring to obtain the
information for any other purpose must petition the court so that an appropriate
hearing can be conducted.
Local Civ. Rule 47.02 (D.S.C.).
In the case at bar, no person other than counsel for the parties has sought access to the
questionnaire responses in accordance with the Local Rule. Before trial, counsel for Eaglin
submitted the requisite form,4 obtained copies of the completed questionnaires, and had the
opportunity to review all questionnaire responses for the purpose of evaluating potential jurors for
a pending case. His written objection contains no indication that he desires or desired “to obtain the
information for any other purpose.” Local Civ. Rule 47.02 (D.S.C.). Moreover, no other person has
petitioned the court to obtain the information for any other purpose, which would trigger the hearing
referenced in the Local Rule—a hearing at which, in accordance with prevailing First Amendment
law and other applicable authority, the court would then identify the source of the person’s right at
issue and conduct the required balancing test. See Eaglin v. McCall, No. 16-7171, 2017 WL
1951982, at *1 (4th Cir. May 10, 2017) (per curiam) (citing Doe v. Pub. Citizen, 749 F.3d 246, 266,
4

(ECF No. 178-2.)
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269 (4th Cir. 2014)). Because the court has received no such request, application of the test would
appear premature. Should the court receive such a request, it will of course conduct a hearing in
accordance with the Local Rule, the District’s Plan, and other applicable law.
To the extent Eaglin seeks to challenge the procedure adopted by the district court by Local
Rule and the Plan—promulgated pursuant to federal statute and approved by the Fourth Circuit
Judicial Council—the court finds such a challenge to be misplaced. First, he has obtained precisely
what he sought—copies of the questionnaire responses for the purpose of selecting a jury—and he
has not established how he has standing to assert a right to access on behalf of any other person. See
Doe, 749 F.3d at 261 (citing United States v. Hickey, 185 F.3d 1064, 1066 (9th Cir. 1999) (rejecting
the proposition that a named party has standing to vindicate the public’s right of access)).
Nonetheless, in an abundance of caution to ensure compliance with the Fourth Circuit’s order of
remand, the court alternatively finds that the plaintiff has failed to show that the procedure provided
by the Plan and Local Rule violates the First Amendment or applicable statutory law.
As required by precedent, the court begins with identifying the source of right at issue: here,
the First Amendment to the United States Constitution. See, e.g., Doe, 749 F.3d at 266. “Under the
First Amendment, ‘access may be restricted only if closure is necessitated by a compelling
government interest and the denial of access is narrowly tailored to serve that interest.’ ” Eaglin,
2017 WL 1951982, at *1 (quoting Doe, 749 F.3d at 266). “The presumption of openness may be
overcome only by an overriding interest based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.” Press-Enter. Co. v. Superior Court of
California, Riverside Cty., 464 U.S. 501, 510 (1984).

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Applying the First Amendment test regarding court access, the court concludes that the
procedure described above, which provides any person access to juror questionnaire responses for
jury selection purposes and permits any person to petition the court and receive a hearing to use the
information for any other purpose, is essential to preserve higher values. First, it promotes the
compelling government interest in a fair trial by an impartial jury. See, e.g., In re S.C. Press Ass’n,
946 F.2d 1037, 1043 (4th Cir. 1991). Interrelated with that higher value is the protection of juror
privacy, which courts have recognized as a compelling government interest.5 See, e.g., United States
v. Bonds, No. C 07-00732 SI, 2011 WL 902207, at *5 (N.D. Cal. Mar. 14, 2011); see also
Press-Enter. Co., 464 U.S. at 511-12.
The court also concludes that the procedure is narrowly tailored to serve those interests.
First, the only less restrictive alternative suggested by the plaintiff is essentially to permit general
access to the questionnaire responses for any purpose. See Informal Brief for Plaintiff at 8 n.3,
Eaglin v. McCall, No. 16-7171, 2017 WL 1951982 (4th Cir. May 10, 2017). This alternative would
afford no protection whatsoever to the overriding, compelling interests identified above. Also, the
procedure in the Plan and Local Rules, which generally restricts only the purpose for which the
information in the questionnaire responses can be used, is narrowly tailored to protect the compelling
interests of privacy and fair trial in that it provides an opportunity for any person to be heard and
present specific reasons to be allowed to use the information “for any other purpose.” Local Civ.

5

The court emphasizes that the questionnaire at issue is not case-specific and asks private,
confidential questions of prospective jurors on an array of sensitive topics. For example, it demands
that each prospective juror—including those who may never be empaneled—provide, under penalty
of perjury, responses pertaining to their criminal record, their health, whether they have ever been
a victim of crime (which would include rape or other violent crimes), and their drug and alcohol
abuse and treatment history.
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Rule 47.02 (D.S.C.); see also In re Amended Jury Selection Plan, No. 3:14-mc-338-TLW (ECF No.
2-1 at 6) (referencing “distribution in accordance with the court’s Local Rules”). Under the Plan and
the Local Rule, the press and public have the opportunity to petition the court and obtain a hearing
as to whether they may obtain the responses for a use other than jury selection. Such a hearing then
permits the court, in the context of the specific request, to conduct the required balancing test in light
of the reason given for the request for access beyond jury selection purposes and weigh that against
the higher values identified, including an impartial jury and privacy interests, and then consider
appropriate case-specific alternatives to ensure that any continued restriction on the use of the
information is narrowly tailored to serve those interests.
For all of the foregoing reasons, the court concludes that the plaintiff’s objection is moot
because he has received what he requested. Additionally, he lacks standing to assert a right of access
on behalf of any other person. Alternatively, the court finds the procedure in the District’s Jury Plan
and Local Rules providing a hearing to any requester who wishes to use information contained in
jury questionnaire responses for a purpose other than jury selection to be narrowly tailored to protect
the various higher values identified above.
The plaintiff’s objection is therefore OVERRULED.
IT IS SO ORDERED.

August 16, 2017
Columbia, South Carolina

___________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE

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