Amelkin v. McClure , 205 F.3d 293 ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0066P (6th Cir.)
File Name: 00a0066p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
STEPHEN AMELKIN, Broadway ;


Chiropractic; DR. BRIAN

CHRISTOPHER FEE; STUART

No. 96-5942
LYON; NICOLAS BAKER;

DAVID KAPLAN; JAMES W. >
CHAMBERS; SIDNEY HANISH; 
RHODA DANIELS; THOMAS H. 

WALL; JAMES BOGARD, doing 
WATSON; KENNETH W.


business as Bogard &
Associates, 
Plaintiffs-Appellees, 

CITY OF LOUISVILLE, Division 

Plaintiff, 
of Police,




v.


ANN MCCLURE, Document
Commissioner of Department 
Custodian; GARY ROSE,

CHANDLER, Attorney General, 
of State Police; BEN
Defendants-Appellants, 


1
2 Amelkin, et al. v. McClure, et al. No. 96-5942


JUSTICE CABINET, Department

of State Police,

Plaintiff/Counter Defendant-

Appellant,



JEFFERSON COUNTY,
Defendant. 
KENTUCKY,
1
On Remand from the United States Supreme Court.
Nos. 94-00360, 95-00022, 95-00352—Charles M. Allen,
District Judge.
Argued: April 24, 1998
Decided and Filed: February 24, 2000
Before: SUHRHEINRICH, SILER, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: William B. Pettus, OFFICE OF THE
ATTORNEY GENERAL, CIVIL & ENVIRONMENTAL
LAW DIVISION, Frankfort, Kentucky, Lucy B. Richardson,
COMMONWEALTH OF KENTUCKY JUSTICE
CABINET, GENERAL COUNSEL, Frankfort, Kentucky, for
Appellants. Donald L. Cox, LYNCH, COX, GILMAN &
MAHAN, Louisville, Kentucky, for Appellees. ON BRIEF:
William B. Pettus, OFFICE OF THE ATTORNEY
GENERAL, CIVIL & ENVIRONMENTAL LAW
DIVISION, Frankfort, Kentucky, Lucy B. Richardson,
COMMONWEALTH OF KENTUCKY JUSTICE
CABINET, GENERAL COUNSEL, Frankfort, Kentucky, for
Appellants. Mary J. Lintner, LYNCH, COX, GILMAN &
MAHAN, Louisville, Kentucky, for Appellees. Laurence J.
6 Amelkin, et al. v. McClure, et al. No. 96-5942 No. 96-5942 Amelkin, et al. v. McClure, et al. 3
§ 189.635 and the California statute that the Supreme Court Zielke, PEDLEY, ZIELKE, GORDINIER, OLT & PENCE,
considered in United Reporting. Because the district court Louisville, Kentucky, for Amicus Curiae.
only addressed the plaintiffs’ facial challenge, as indicated by
the fact that it permanently enjoined the state of Kentucky _________________
from enforcing KRS § 189.635, see Amelkin v. McClure, 936
F. Supp. 428 (W.D. Ky. 1996), we must reverse and remand OPINION
the case for the district court to consider the plaintiffs’ as- _________________
applied challenge.
RONALD LEE GILMAN, Circuit Judge. On
B. The Challenge to KRS § 61.874 December 13, 1999, the Supreme Court vacated our February
17, 1999 decision in the above-styled matter, see Amelkin v.
The district court also enjoined the enforcement of KRS McClure, 168 F.3d 893 (6th Cir. 1999), and remanded the
§ 61.874, the statute that allows the state custodian of case for further consideration in light of Los Angeles Police
nonexempt public documents to charge commercial users for Dep’t v. United Reporting Publishing Corp., 528 U.S. __, 120
producing copies of police accident reports. It did so without S.Ct. 483 (1999). After taking into account the majority’s
making specific findings regarding the four factors that are holding in United Reporting, we REVERSE the district
used in determining whether a preliminary injunction should court’s decision to enjoin the enforcement of Kentucky
be granted. See Washington v. Reno, 35 F.3d 1093, 1099 (6th Revised Statute § 189.635(5)-(6), which was based upon the
Cir. 1994). Without the benefit of such factual findings, it is plaintiffs’ “facial challenge” to the statute restricting access
impossible for us to judge the validity of the plaintiffs’ to police accident reports. We further REMAND the case for
arguments. Accordingly, our prior opinion vacated and consideration of the plaintiffs’ “as-applied” challenge to the
remanded the case back to the district court to make findings statute. The remainder of our prior decision was not affected
of fact and conclusions of law as to how KRS § 61.874 has by the Supreme Court’s action and continues to be the ruling
been applied by the state agency. See Amelkin, 168 F.3d at of this court.
901-02. This portion of our prior opinion was not modified
by United Reporting, and continues to be the ruling of this I. FACTUAL SUMMARY
court.
A number of attorneys and chiropractors, as well as the
III. CONCLUSION proposed publisher of a commercial newspaper to be called
The Accidental Journal, filed suit to challenge two Kentucky
For the reasons set forth above, the district court’s decision statutes, one restricting access to police accident reports and
regarding KRS § 189.635 is REVERSED and REMANDED the other allowing the state custodian of nonexempt public
for consideration of the plaintiffs’ as-applied challenge, and documents to charge commercial users “a reasonable fee” for
its decision regarding KRS § 61.874 is VACATED and producing copies of the reports. The district court
REMANDED, all for further proceedings consistent with this permanently enjoined the enforcement of both statutes,
opinion. finding that they violated the plaintiffs’ First Amendment
right to freedom of expression. On appeal, we affirmed the
district court’s injunction regarding KRS § 189.635
(restricting access to police accident reports), but vacated and
remanded its decision regarding KRS § 61.874 (allowing fees
4 Amelkin, et al. v. McClure, et al. No. 96-5942 No. 96-5942 Amelkin, et al. v. McClure, et al. 5
to be charged to commercial users for copies of the reports). upheld, then the state cannot enforce the statute against
See Amelkin, 168 F.3d at 901-02. anyone. See Board of Trustees v. Fox, 492 U.S. 469, 483
(1989) (“Where an overbreadth attack is successful, the
II. ANALYSIS statute is obviously invalid in all of its applications, since
every person to whom it is applied can defend on the basis of
A. The Facial Challenge to KRS § 189.635 the same overbreadth.”). On the other hand, an “as-applied”
challenge consists of a challenge to the statute’s application
The first issue that must be addressed is whether the only to the party before the court. See generally City of
plaintiffs can bring a facial challenge to KRS § 189.635, the Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758-
statute that regulates access to police accident reports in 59 (1988) (noting that as-applied challenges are reviewed on
Kentucky, in light of the Supreme Court’s recent decision in a case-by-case basis). If it is successful, the statute may not
United Reporting. In United Reporting, a private publishing be applied to the challenger, but is otherwise enforceable. Id.
company in California had been providing the names and
addresses of recently arrested individuals to its customers, Overbreadth facial challenges are normally rejected because
who included attorneys, insurance companies, drug and “a person to whom a statute may constitutionally be applied
alcohol counselors, and driving schools. It received the may not challenge that statute on the ground that it may
names and addresses from local law enforcement agencies conceivably be applied unconstitutionally to others in
until the state of California amended Cal. Gov’t Code situations not before the Court.” New York v. Ferber, 458
§ 6254(f)(3) to require that a person requesting an arrestee’s U.S. 747, 767 (1982). As explained by the Supreme Court in
name and address declare that the request is being made for United States v. Salerno, 481 U.S. 739, 745 (1987), “[a] facial
one of five prescribed purposes, and that the name and challenge to a legislative Act is, of course, the most difficult
address will not be used directly or indirectly to sell a product challenge to mount successfully, since the challenger must
or service. United Reporting sought declaratory and establish that no set of circumstances exists under which the
injunctive relief, and requested that the amended section be Act would be valid.”
declared unconstitutional under the First and Fourteenth
Amendments. One of the few exceptions to the presumption against facial
challenges is if a statute proscribes speech and threatens
The district court construed United Reporting’s claim as a violators with prosecution. See Gooding v. Wilson, 405 U.S.
facial challenge to § 6254(f)(3), granted United Reporting’s 518, 520-21 (1972). In United Reporting, the Supreme Court
motion for summary judgment, and enjoined the enforcement held that a facial challenge was not warranted because
of the statute. Upon appeal, the Ninth Circuit affirmed the § 6254(f)(3) neither imposed a threat of criminal prosecution
district court’s judgment, concluding that the statute was nor “chilled” expressive speech—it simply restricted access
facially invalid. The Supreme Court, however, reversed the to government information. Id. at 489-90.
Ninth Circuit, and held that § 6254(f)(3) did not warrant the
drastic measure of declaring facial invalidity. See United Based on the reasoning set out in United Reporting, KRS
Reporting, 120 S. Ct. at 489. § 189.635 is similarly not subject to a facial challenge
because it does not carry the threat of prosecution for
An overbreadth facial attack is made when a challenger violating the statute and it does not restrict expressive speech,
argues that an otherwise valid law might be applied but simply regulates access to the state’s accident reports. In
unconstitutionally in a specific context. See generally United this regard we find no material differences between KRS
Reporting, 120 S. Ct. at 488-89. If a facial challenge is