Dow Jones & Company, Inc. v. Robert P. Kaye , 256 F.3d 1251 ( 2001 )

DOW JONES & COMPANY, INC., Publisher of the Wall Street Journal, The New York Times
Company, Publisher of the New York Times, et al., Plaintiffs-Appellees,
v.
Robert P. KAYE, in his official capacity as Circuit Court Judge for the Eleventh Circuit of Florida,
Defendant-Appellant.
No. 00-12390.
United States Court of Appeals,
Eleventh Circuit.
July 12, 2001.
Appeal from the United States District Court for the Southern District of Florida.(No. 00-00962-CV-AJ),
Adalberto Jordan, Judge.
Before EDMONDSON, DUBINA and POLITZ*, Circuit Judges.
EDMONDSON, Circuit Judge:
This case requires us to consider whether a challenge in federal court to a gag order issued in state
court is moot. The final judgment has been entered on the state case, but the parties have appealed to the state
appellate court. We conclude that this appeal is moot and dismiss for lack of jurisdiction.1
I.
This case arises out of a widely publicized product-liability lawsuit filed in a south Florida state court
against some tobacco companies. The suit sought to recover damages for cigarette addiction. See generally
Engle v. R.J. Reynolds Tobacco Co., No. 94-8273 (Fla. 11th Jud. Cir. Ct.). Judge Robert Kaye presided over
the state proceedings.
Class plaintiffs2 filed the Engle complaint in 1994. In October 1998, after jury selection concluded
for the liability phase of Engle, Judge Kaye entered this gag order:
All parties and their agents shall adhere to the Florida Rules of Professional Conduct. All parties and
their agents are prohibited from holding any public meetings and/or press conferences or briefings
which relate to any facts or issues concerning this case. In addition, no party nor their agents are to
make any public statement, written or oral, which pertains to any court proceedings in this case,
including any part[y's] version of the facts, issues, merits, and theories of the case. All parties will
*
Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
1
Also on appeal are questions of Younger abstention—see Younger v. Harris, 401 U.S. 37, 91 S.Ct.
746, 27 L.Ed.2d 669 (1971)—and a First Amendment challenge to the gag order. Because we conclude
that the case is moot, we say nothing about the substance of these two issues.
2
The class plaintiffs in the underlying Engle litigation are not parties to the federal-court litigation.
also refrain from publically characterizing any party or witness in this case.
Judge Kaye entered the gag order when he learned that some of the defendant-tobacco companies planned
a press conference and had already issued a press release about the trial. Judge Kaye held a hearing with the
parties to discuss the gag order before it was issued. But, he prohibited the media from attending the hearing.
The state-court parties acquiesced in and contributed to the phrasing of the written gag order.
Over a year later, after the liability phase of Engle ended and during the compensatory damages
phase, some of the tobacco companies moved to vacate the gag order. Judge Kaye denied the motion, and
the state appellate court sustained the gag order. See R.J. Reynolds Tobacco Co. v. Engle, 750 So.2d 781,
781 (Fla. 3rd D.C.A.2000). The state appellate court also denied media-entity Dow Jones's motion to
intervene in the appeal; Dow Jones participated as amicus curiae in the state appeal.
In March 2000, Dow Jones and several other media entities (collectively, "media") filed a complaint
against Judge Kaye in federal court, claiming that the 19-month old gag order violated a First Amendment
right to gather and to disseminate news. As relief, the media requested that the district court "enter a
permanent injunction immediately dissolving the gag order." The media also filed an Emergency Motion for
a Temporary Restraining Order, requesting that Judge Kaye "be restrained from enforcing [the] 'gag order'
" that he entered in the Engle litigation. Judge Kaye presented a defense. In April 2000, the district court
denied Judge Kaye's motion to dismiss and granted the media's preliminary injunction, saying "Judge Kaye
is enjoined from enforcing the gag order." Judge Kaye then filed this appeal.
Meanwhile, in the state court, the Engle trial ended in July 2000 with a $145 billion punitive damages
award. Based on this development in the state trial, the media moved to dismiss this appeal as moot. Judge
Kaye countered that this case was within the capable-of-repetition-yet-evading-review exception to mootness.
The tobacco companies now have appealed the jury verdict and damage awards to the state appellate
court. At oral argument, we requested supplemental briefing to allow the parties to explain the effect of the
state appeal on our question of mootness.
II.
Our jurisdiction is limited, by the Constitution, to "cases" and "controversies." U.S. Const. Art. III
§ 2. As the Supreme Court has explained, a justiciable controversy "must be definite and concrete, touching
the legal relations of parties having adverse legal interests. It must be a real and substantial controversy
admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U.S.
227, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937).
A.
"A claim for injunctive relief may become moot if: '(1) it can be said with assurance that there is
no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged violations.' " Reich v. Occupational Safety & Health
Review Comm'n, 102 F.3d 1200, 1201 (11th Cir.1997) (quoting County of Los Angeles v. Davis, 440 U.S.
625, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979)). When we consider our jurisdiction for mootness, we look
at the events at the present time, not at the time the complaint was filed or when the federal order on review
was issued. See Jews for Jesus, Inc. v. Hillsborough County Aviation Auth., 162 F.3d 627, 629 (11th
Cir.1998) ("A case is moot when events subsequent to the commencement of a lawsuit create a situation in
which the court can no longer give the plaintiff meaningful relief.").
For now, at least, because final judgment has been entered and the state case is on appeal, Judge
Kaye no longer has jurisdiction to enforce the gag order. See Harrell v. State, 197 So.2d 505, 506 (Fla.1967);
Parsons v. Whitaker Plumbing of Boca Raton, 730 So.2d 839, 840 (Fla. 4th D.C.A.1999); see also Fla.
R.App. P. 9.600(b). Although the gag order, on its face, makes no reference to when the gag order would
expire, Florida law precludes Judge Kaye from enforcing the gag order now that he has no jurisdiction over
the parties.3 Thus, the gag order, which the media complained prohibited the parties from speaking to the
media, no longer seems to prohibit the parties from speaking to the media. So, interim acts have completely
and irrevocably eradicated the effects of the alleged violation.
But Judge Kaye argues that a reasonable expectation exists that the alleged violation will recur
3
Judge Kaye, citing Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176 (11th Cir.1994), argues that
the district court's preliminary injunction enjoined the "entire state judiciary, including the Florida
appellate courts," because the media sued Judge Kaye in his official capacity. But when we said in Hill
that "[o]fficial capacity suits represent only another way of pleading an action against an entity of which
an officer is an agent," id. at 1184 n. 16 (quoting Hobbs v. Roberts, 999 F.2d 1526, 1530 (11th Cir.1993)),
we were talking about qualified immunity and money damages, not injunctive relief.
An injunction against a single state official sued in his official capacity does not enjoin
all state officials from the prohibited conduct. See Kentucky v. Graham, 473 U.S. 159, 105 S.Ct.
3099, 3106 n. 14, 87 L.Ed.2d 114 (1985) ("[O]fficial-capacity actions for prospective relief are
not treated as actions against the State."). The district court's preliminary injunction against
Judge Kaye does not enjoin every other Florida state judge from enforcing a similar gag order.
because the Florida appellate court could remand the case for retrial.4 We accept that every state trial-court
decision in Florida may be subject to reversal or remand by a higher state court. But, we will not presume,
or even suggest, that the trial conducted by Judge Kaye was conducted in error.5 Our presumption, in fact,
goes in the opposite direction, that is, that the state trial-court proceedings complied with the law or, at least,
contained no reversible error. While we recognize that remand or reversal is a procedural possibility, we
refuse to overcome the jurisdictional bar of mootness by concluding that we have a reasonable expectation
that a state trial court's decision will be reversed or remanded. See Nationwide Mut. Ins. Co. v. Burke, 897
F.2d 734, 739-40 (4th Cir.1990) (concluding case moot, based on intervening events by state court, even
though "state court determination may yet be subject to appeal and possibly to reversal").
So, we conclude that the media's First Amendment challenge to Judge Kaye's gag order in the Engle
case is moot because it presents no live case or controversy.
B.
This initial conclusion of mootness, however, does not end our inquiry. Judge Kaye has argued that
this case fits within one of the exceptions to the mootness doctrine; he says it is capable of repetition yet
evading review. See B&B Chem. Co., Inc. v. United States Envtl. Prot. Agency, 806 F.2d 987, 990 (11th
Cir.1986). This exception applies, Judge Kaye argues, because similar disputes between media and Florida
state judges—including him—about gag orders are likely to arise in the future and, because of the gag orders'
short-lived nature, these gag orders will likely expire before completion of the federal appellate process.
4
This case is different from many of the cases cited by Judge Kaye that conclude a case is not moot
because a reasonable expectation of recurrence exists. See, e.g., City of Erie v. Pap's A.M., 529 U.S. 277,
120 S.Ct. 1382, 1390, 146 L.Ed.2d 265 (2000) (reasonable expectation of recurrence even though strip
club owner sold strip club and was no longer involved in nude dancing industry); Allee v. Medrano, 416
U.S. 802, 94 S.Ct. 2191, 2197, 40 L.Ed.2d 566 (1974) (reasonable expectation of recurrence even though
union abandoned organizing efforts pending First Amendment challenge). Those cases involve voluntary
cessation of the challenged activity. Often, when a party has voluntarily stopped challenged activity in
the face of a lawsuit, a reasonable expectation may exist that the party will resume that activity if the case
is dismissed as moot.
Here, however, the Engle trial concluded; and the gag order's force expired due to the
natural progression of the litigation, not because of the voluntary acts of one party (although we
recognize that Judge Kaye, as presiding judge, somewhat controlled the litigation's speed). So,
we read the cases dealing with voluntary cessation as materially different from this one.
5
We do not mean to rule that the Engle case was correctly or incorrectly decided. That decision is
one for the Florida appellate system, and perhaps even the United States Supreme Court, to decide. We
only mean that, for purposes of determining whether a federal case is moot, we are unwilling to say that
pendency of a state appeal inherently means a reasonable expectation exists that a state trial court
judgment will be reversed or remanded by that state's appellate courts.
The narrow capable-of-repetition exception only applies in "exceptional situations," City of Los
Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1983), where "1) the challenged action
is too short in duration to be fully litigated prior to its cessation or termination, and 2) there is a reasonable
expectation that the same complaining party will be subject to the same action again."6 B&B Chem. Co., 806
F.2d at 990.
Judge Kaye relies on a series of Supreme Court cases and on one Eleventh Circuit case to say that
this case falls within the exception. See Globe Newspaper Co. v. Superior Court for Norfolk Co., 457 U.S.
596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100
S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d
608 (1979); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); News-
Journal Corp. v. Foxman, 939 F.2d 1499 (11th Cir.1991). In all of these cases, the federal courts applied the
capable-of-repetition-yet-evading-review exception to conclude that media's challenges to a state-court
restrictive order were not moot even though the pertinent trial or hearing had ended and the restrictive order
had expired. These cases are distinguishable and do not require us to apply the capable-of-repetition
exception to this case. We are not convinced that a future repetition of the interplay of the state and federal
orders like the one in this civil case is likely to escape review.
First, the underlying litigation in the precedents involved criminal trials, but the Engle case is a civil
case. This fact is important for two reasons. First, while a gag order may be permitted in civil cases, given
that all of the cases cited by Judge Kaye are criminal cases, it seems that gag orders are more common in
criminal cases; so, there may be less chance that this particular civil-litigation situation will be repeated.7
Second, as the Supreme Court has noted, "[m]ore often than not, criminal trials will be of sufficiently short
duration that a closure order 'will evade review, or at least considered plenary review in this Court.' "
6
We recognize that the second element of the capable-of-repetition exception to mootness is similar to
the reasonable-expectation-of-recurrence element of mootness. See Jews for Jesus, 162 F.3d at 629 n. 4
(concluding that holding of no reasonable expectation of recurrence precludes application of
capable-of-repetition doctrine). We will analyze the arguments separately because Judge Kaye makes
different arguments about why this case has a reasonable expectation of recurrence and why this case is
capable of repetition yet evades review.
7
The facts of the underlying Engle litigation seem unique. The litigation was brought against the five
largest tobacco companies in the country, was the first smoker-injury class action to reach a jury, and
resulted in the largest damage award in United States' history. See Gordon Fairclough & Milo Geyelin,
Tobacco Companies Rail Against Verdict, Plan to Appeal $144.87 Billion Award, Wall. St. J., July 17,
2000, at A3.
Richmond Newspapers 100 S.Ct. at 2820 (quoting Nebraska Press, 96 S.Ct. at 2797); see Globe Newspaper,
102 S.Ct. at 2618; see also U.S. Const. Amend. VI; 18 U.S.C. § 3161 (Speedy Trial Act); Klopfer v. State
of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 994, 18 L.Ed.2d 1 (1967). Therefore, a gag order in a criminal
case may be more likely to evade review than one in a civil case.
Even when we suppose that the capable-of-repetition exception can apply to gag orders in civil cases,
the peculiar facts of this case do not support applying the capable-of-repetition exception here. Even though
Florida state trial judges may in the future issue similar gag orders in civil cases, that challenged act is not
necessarily "in its duration too short to be fully litigated prior to cessation or expiration." See Weinstein v.
Bradford, 423 U.S. 147, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curium). This particular appeal has
become moot—and thus, evades review—not because of the nature of the challenge, but because of the
inaction of the parties. Cf. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 1699-1700,
40 L.Ed.2d 1 (1974) (economic strikes, by their nature, do not generally last long enough for appellate review
of controversies); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973) (pregnancy's
duration of 266 days would not allow time for appellate review). Therefore, we will not apply the
capable-of-repetition exception to avoid mootness.
In the cases cited by Judge Kaye, the media (who, like the media in this case, were not parties to the
underlying litigation), immediately challenged the gag orders through a variety of judicial avenues and often
became parties to the litigation. See Richmond Newspapers, Inc., 100 S.Ct. at 2819-20 (in state court, media
sought hearing on motion to vacate closure on same day order issued; moved to intervene, which was
granted; petitioned state supreme court for writ of mandamus and prohibition; and filed appeal from trial
court's closure order); Nebraska Press Ass'n, 96 S.Ct. at 2795-96 (in state court, day after gag order entered,
media moved to intervene at trial court; 8 days later petitioned district court to stay order, applied to state
supreme court for writ of mandamus, a stay, and expedited appeal); Foxman, 939 F.2d at 1505-6 (in state
court, within 18 days of gag order, media filed motion for rehearing at district court, petitioned state court
of appeals for certiorari review, and moved to stay restrictive order; when court of appeals did not respond
within 60 days of filing of last brief, media filed in federal court). Cf. Unabom Trial Media Coalition v. U.S.
Dist. Ct. for the E.D. of Cal., 183 F.3d 949, 953 (9th Cir.1999) (concluding case unlikely to evade review
where media delayed objections to district court's closure orders and did not seek expedited review).
In contrast, the parties in this appeal did not respond quickly to the gag order or exercise all judicial
avenues to challenge the gag order or to defend the gag order speedily against challenges once they were
made. The media never moved to intervene at the state trial court (either when the gag order was first
announced or a year later when the tobacco companies moved to vacate the gag order), made no state motion
to stay the gag order, nor sought any mandamus relief from the state supreme court.8 Instead, the media
waited a year and a half before filing for injunctive relief in federal court. Also, no party moved for expedited
review in state or federal court.9 Had the parties responded immediately, we (or the Florida Supreme Court
or the United States Supreme Court) may well have been able to complete review of the gag order before the
case became moot. See Foxman, 939 F.2d at 1507 (noting that gag order evaded review because neither state
courts nor federal courts completed review before gag order vacated, even though media challenged gag order
immediately). Cf. Wakefield v. Church of Scientology, 938 F.2d 1226, 1230 (11th Cir.1991) (concluding
media's unsuccessful efforts to unseal court files and gain access to contempt proceedings not of short
duration given long period of protracted civil litigation and media's failure to intervene or appeal until late
in litigation).
In short, the capable-of-repetition exception does not apply. We cannot say that this kind of state gag
order is inherently too short in duration to allow for complete review. We are unconvinced of an inherent
problem, given the parties' particular failures to respond quickly and resourcefully to Judge Kaye's gag order
and to the subsequent federal challenge to the state gag order. That future cases similar to this one will escape
review—applying, in those cases, ordinary "case and controversy" standards—is simply too doubtful.
C.
Even though we conclude that the appeal is moot, the media argue that we should follow our "usual
practice" and only dismiss the appeal, leaving intact the district court's federal order preliminarily enjoining
Judge Kaye from enforcing the gag order. We recognize that sometimes, when reviewing a preliminary
injunction, we have dismissed only the appeal without vacating the federal district court's order. But in those
situations, the preliminary injunction by its own terms had expired. See, e.g., Brooks v. Georgia St. Bd. of
8
These facts are also pertinent to the Younger analysis, which we will not address based on our
conclusion of mootness. But these facts are pertinent to the mootness analysis for a different purpose:
not to argue that the media must exhaust state remedies before taking advantage of the mootness
exception, but instead to argue that the media did nothing for a year and that this kind of case is not
inherently one capable of repetition yet evading review.
9
We note that appeals on expedited review may be resolved in relatively short order. See, e.g.,
Suntrust Bank v. Houghton Mifflin Co., 252 F.3d 1165 (11th Cir.2001) (expedited appeal reversing grant
of preliminary injunction 35 days after district court issued order).
Elections, 59 F.3d 1114, 1122 (11th Cir.1995); Tropicana Products Sales, Inc. v. Phillips Brokerage Co.,
874 F.2d 1581, 1582 (11th Cir.1989).
We have also said, based on principles of equity, that "[w]here a case becomes moot after the district
court enters judgment but before the appellate court has issued a decision, the appellate court must dismiss
the appeal, vacate the district court's judgment, and remand with instructions to dismiss as moot." Bekier v.
Bekier, 248 F.3d 1051, 1056 (11th Cir.2001) (internal citations and quotation omitted); see also Ethredge
v. Hail, 996 F.2d 1173, (11th Cir.1993) (concluding preliminary injunction moot and, thus, vacating district
court order to "prevent the district court's opinion from spawning precedential10 consequences").
We do not have a proper case now to consider the issues of Younger abstention and the First
Amendment. In this case, the mootness seems more attributable to the inaction of the media than to Judge
Kaye (although he never sought an expedited appeal nor sought a stay of the federal order pending appeal).
And, because the federal district court order favors the media, equity favors vacating the federal order in these
circumstances. See United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 107, 95 L.Ed. 36 (1950)
("When [the procedure of vacating a moot order] is followed, the rights of all parties are preserved; none is
prejudiced by a decision which in the statutory scheme was only preliminary."); see also U.S. Bancorp
Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 115 S.Ct. 386, 391-92, 130 L.Ed.2d 233 (1994); Bekier,
248 F.3d at 1056.
Moreover, the command of the district court's federal order—enjoining a state judge (who was
directing only parties before him in an ongoing state case about their conduct relative to that case) and
potentially subjecting the state judge to criminal contempt proceedings in federal court, see Hoover v.
Wagner, 47 F.3d 845, 850-51 (7th Cir.1995)—is extraordinary. For these reasons, we will follow the more
cautious approach and vacate the federal district court's order, nullifying it altogether.11 See Troy St. Univ.
v. Dickey, 402 F.2d 515, 516-17 (5th Cir.1968).
So, we DISMISS this appeal for lack of jurisdiction, VACATE the preliminary injunction, and
10
We note that generally district court decisions are only persuasive authority and have no binding
precedential authority beyond the case in which they are entered, and not always in that case. See
Fishman & Tobin, Inc. v. Tropical Shipping & Const. Co., Ltd., 240 F.3d 956, 965 (11th Cir.2001). But
we mean for this unreviewed federal order to have no collateral or future consequences at all.
11
Where only a preliminary injunction is on appeal, we only have the authority to vacate that federal
order. See Ethredge, 996 F.2d at 1175-76. Although we think that the entire case may be moot, that
determination ultimately rests with the district court. Other issues may remain "live" that are not before
us on appeal.
REMAND for further proceedings consistent with this opinion.