THE PUTNAM PIT, INC., and
CITY OF COOKEVILLE, and
JIM SHIPLEY, in his official
capacity as City Manager of
the City of Cookeville,
This action concerns Plaintiffs' claims seeking access
to parking ticket data in electronic form, to City computer Internet usage
history files and to be linked to the City's web site. (Geoffrey Davidian
depo., Defendants' Exhibit 1, pp. 77-79). Davidian acknowledges that he
has gotten and continues to get records that he requests in hard copy,
paper format. (Id. pp. 79-80). Davidian has never requested nor received
data in electronic format from any public entity. (Id. pg. 82). Davidian
is unaware of anyone to whom the City has ever provided access to data
in electronic format. Id. pp.65-66). Assuming the City's records are correct,
Davidian acknowledges that he has received many times more records pursuant
to his record requests than any other individual or entity. (Id. pg. 63).
Davidian does not deny that his requests have required more employee time
to process. (Id. pp. 64-65; 101-109). Davidian acknowledges that the City
has sent documents to him in California by fax or e-mail, although this
is not required by the Tennessee Open Records Act. (Id. pg. 110). Davidian
has on numerous occasions gotten the City to provide duplicate copies of
documents. Id.). Davidian has seen all of the many employee personnel files
he has requested to see. (Id. pg. 138). Davidian's written version of The
Putnam Pit is now produced by him approximately quarterly. (Id. pg.
94). It has a circulation of approximately two thousand. (Id. Pp. 96).
It is distributed at numerous locations throughout the City. (Id. pp. 96-97).
With respect to The Putnam Pit web site, an Internet
user can easily locate The Putnam Pit web site through any of the
commonly used Internet search engines just by using the word search "Cookeville,
Tennessee." (Id. pp. 90-91). Davidian acknowledges that it is easy to locate
The Pit web site on the Internet. (Id.). The Pit web site
is visited by approximately one thousand Internet users per month. (Id.
In the experience of Cookeville City Manager Jim Shipley,
Mr. Davidian is unique amongst members of the press. (Excerpt of Jim Shipley
depo., Defendants' Exhibit 3, pp.4, 6). In Shipley's mind, no one besides
Davidian has ever hassled City employees and demanded so much of employees'
time with record requests. (Id. pp. 7-8). Shipley perceives Davidian as
demanding, insisting that City employees drop what they are doing to immediately
take care of his requests, is a smart aleck when making requests by accusing
them of changing, deleting or hiding things, and just plain rude. (Id.
pp.7-8, 10, 12-13).
Shipley's Administrative Assistant deals with the public
all the time and Davidian is the first person who has ever upset her. (Id.
pp.13-14). Davidian has impliedly threatened her and questioned her integrity.
(Gail Fowler depo., Defendants' Exhibit 2 pp.4-6). As a result of Davidian's
extensive research requests, the City instituted a practice of charging
all persons for actual personnel costs for requests involving extensive
research and compilation. (Id. pp. 23-24; Affidavit of Gail Fowler, Defendants'
Exhibit 4, Par. 2).
With respect to Internet computer files, Davidian is the
first person to ever make such a request, and the City has never allowed
the public to inspect the City's computers. (Shipley depo., pg. 19). Initially
upon Davidian's request to inspect City computer "cookie" files, Shipley
did not know what this would entail, so he asked the City Computer Operations
Manager how much of his time would be required in fulfilling this request.
(Id. pp. 24-25; Steve Corder depo., Exhibit 5, pp.3-5, 9, 12-13). Mr. Corder
made assumptions about what information Davidian was looking for and gave
Shipley an off-the-top-of-his-head estimate of about thirty (30) hours
to find, process, compile and download this information for all thirty-
five of the City's Internet accessible computers. (Corder depo., pp.9,
12-13). Corder was aware that 95% of web sites do not leave cookie files
deposited on computers and assumed that the information Davidian wanted
would require him to inspect, interpret and copy each of the computers'
Internet history and cache files. (Id. pp. 30-35). Corder also assumed
Davidian's request would require him to research all these files since
the City's computers were set to delete cookie files. (Id. pp. 39-40).
Shipley had never had to quote someone a charge for employee's research
time because no one ever before had requested something like this be researched.
(Shipley depo. pg. 27). Shipley took exactly the information provided by
Corder, figured the cost to the City, and requested Davidian to pay a deposit
for those costs.
(Id.). However, two weeks later, Shipley wrote Davidian advising him that they had researched just exactly what a "cookie"(1) file was, and that based on Microsoft's definition, the City had determined that "cookies" are neither the property of the City nor a public record, and accordingly they would not allow the inspection request. (Id. pp. 29-30).
As Davidian continued
to make requests for electronic records, City Attorney T. Michael O'Mara
wrote Davidian on July 9, 1997, setting forth precisely what the City's
policy was with respect to public records access. (Letter, Defendants'
Although Shipley's opinion
is that The Putnam Pit stories are slanted and he does not
care for Davidian' s opinions, Shipley does not care what Davidian puts in The Putnam Pit.
(Shipley depo. pp.43-44).
Shipley has not intentionally tried to make Davidian's reporting or publishing
in The Putnam Pit more difficult. (Id. pg. 62). Shipley's only motivation
with Davidian is wishing that he be reasonable in his requests. (Id. pp.64-65).
Shipley has no intent to obstruct Davidian or The Putnam Pit. (Id.).
Shipley and the City attempt to apply the public records requests policies
fairly to everybody. (Id. pp.67-68; Jim Shipley Affidavit, Defendants'
Exhibit 7, Par. 5).
Regarding the City's
web site(2), the City's intent behind creating
the site is to provide
information via the Internet about the City of Cookeville in hopes of promoting the area to attract businesses, tourists and the like. (Shipley depo. pp.57-58; Shipley Affidavit Pars. 7-8).
It was not the City's
intent that the web site be a public forum for people to express their
opinions nor a bulletin board for people to advertise their businesses. (Id.). Until Davidian asked to be linked to the City's web page, Shipley did not know that there were "local links" to private businesses on the web site. (Shipley depo. pp.51-52). Upon learning that private, for-profit businesses unrelated to commerce, industry and tourism in the area were linked to the web site, Shipley directed that they be removed. (Id.; Shipley Affidavit at Pars. 8-9).
Once Shipley learned
what a "local link" was, his initial thought was to limit links to not-for-profit
entities. (Shipley depo. pp. S2-54). However, Shipley then decided that
the local link policy would be to limit "links" to entities that promote
the economic welfare, tourism and industry in Cookeville. (Id. pp. 54-55;
Shipley Affidavit Pars. 8-10). Shipley did not want it to appear that the
City was endorsing businesses nor dilute the City's messages by cluttering
up the site with unrelated information. (Shipley Affidavit at Pars. 10-12).
In Shipley's opinion, The Putnam Pit does not meet the criteria
of promoting industry, commerce and tourism in the Cookeville area.(3)
(Id. pp. S4-55). Thus, The Putnam Pit is not allowed to be linked
to the City's web site. (Id.). That is true of The Putnam Pit and
all the other local newspapers in the area. (Id. pp.57-58).
rendition of their proof of their claims is contained in Plaintiffs' answers
to interrogatories, submitted as Defendants' Exhibit 10.
A. Plaintiffs have
no First Amendment right of access to the City of Cookeville's computer
for only limited First Amendment protection. Branzburg v.
Hayes, 408 U.S. 665, 92 S.Ct. 2646, 2656 (1972). The limited news-gathering right does not guarantee the press a constitutional right of special access to information not available to the public generally. Id at 2658 citing Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 1280-1281(1965). "The right to speak and publish does not carry with it the unrestrained right to gather information." Id. The First Amendment does not require the government to accord the press special access to information not shared with the members of the public generally. Pell v. Procunier 417 U S 817, 834,94 S.Ct. 2800, 2810 (1974); Saxbe v. Washington Post Company, 417 U.S. 843, 850, 94 S.CT. 2811, 2815 (1974) Accord Houchins v. KOED, Inc. 438 U.S. 1, 98 S.Ct. 2588 (1978) (rejecting news media's contention that they had a constitutional right of access to a county jail over and above that of other persons). The Plaintiff in Houchins alleged precisely the same contention as the instant Plaintiffs.
From the right to gather
news and the right to receive information, they (Plaintiffs) argue for
an implied special right of access to government controlled sources of
information. This right they contend compels access as a constitutional
matter. 98 S.Ct. at 2593 (emphasis in original). The language of the Court
in Houchins was unequivocal:
There is an undoubted right to gather news from any source by means within the law, but that affords no basis for the claim that the First Amendment compels others - private persons or governments - to supply information.98 S.Ct. at 2594-2597 (citations omitted).
There is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information.
There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. The public's interest in knowing about its government is protected by the guarantee of free press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an official secrets act.
Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control. Under our holdings in Pell, Saxbe, supra, until the political branches decree otherwise, as they are free to do, the media has no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.
The only source of governmental
information or records which the Supreme Court has held the media has a
qualified, limited right of access to is coverage of criminal proceedings.
E.g. Richmond Newspapers. Inc. v. Virginia, 448 U.S. 555, 100 S.Ct 2814
(1980). The Sixth Circuit has concluded that the media has a right to access
court documents concerning the recusal of a judge and a conflict of counsel,
In Re National Broadcasting. Inc., 828 F.2d 340 (6th Cir. 1987),
but has never extended this right of access beyond the context of trial
Other circuits have
held that the right of qualified access to criminal trials does not confer
any media right of access outside the criminal justice system El Dia, Inc.
v Hernandez Colon, 963 F 2d 488, 495 (1st Cir. 1992). (denying right of
access to travel and spending records of governor). See also Calder V.
Internal Revenue Service, 890 F. 2d 781, (5th Cir. 1989) (whatever
First Amendment right of access the press had to criminal trials, that
right did not extend to records of the Internal Revenue Service pertaining
to tax investigations of Al Capone notwithstanding that under a prior regulation
the documents had been opened for inspection); Capitol Cities Media. Inc.
v. Chester, 797 F.2d I 164 (3rd Cir. 1986) (en banc).
The records sought by
the media plaintiffs in Chester were of far greater significance than records
concerning where city computer users have been browsing on the Internet.
The plaintiff in Chester alleged that politically improper considerations
led to selective enforcement of environmental regulations causing the outbreak
of illnesses, and sought records identifying sewage control violators,
permits, citizen complaints, and memoranda generated by technical personnel
regarding the investigation. Id. at 1166. Despite the dramatic public health
significance of the information sought, the media had no First Amendment
right of access to same.
Likewise, in J.B. Pictures.
Inc. v. Department of Defense, 86 F.3d 236 (D.C. Cir. 1996), the court
rejected the media plaintiffs assertion of a First Amendment right to publicize
the return to the United States of the remains of soldiers killed overseas.
The media plaintiff's position was rejected as it would require a complete
transformation of the law's permissive treatment of restrictions on access
to government operations not historically open to the public. Id. at 240.
In the instant case,
it is respectfully submitted that Plaintiffs can submit no authority for
the proposition that they have a First Amendment right of access to the
City's Internet use history files or other electronic data on the City's
computers. Plaintiffs have not and cannot prove that the City of Cookeville
allows members of the public generally to access electronic data or Internet
history files. (Shipley depo. pg. 19; Affidavit of Jim Shipley at Par.
3). This fact, in and of itself, is fatal to Plaintiffs' right of access
claim, and ends the analysis.
assuming the existence of some qualified right of access to non- public
matters outside of the judicial process, Plaintiffs cannot establish a
right of access to the requested electronic data under the two-tier Richmond
Newspapers test. First, there is no long-standing tradition, rooted in
history, of access to electronic data and computer Internet history files.
Second, Plaintiffs cannot establish that media access plays a significant
positive role in the functioning of the particular government process in
question. It is respectfully submitted that, if the First Amendment does
not provide a right of access to such publicly important and newsworthy
documents as a department of environmental resources investigation of a
community wide illness outbreak from a public water system, Capitol Cities
Media Inc., nor the Internal Revenue Services investigation records of
Al Capone, Calder, then, a fortiori, there is no First Amendment right
of access to electronic data regarding parking tickets or Internet history
files. Accordingly, Plaintiffs' right of access claim should be dismissed.
Further, as set forth
in the summary judgment record, Plaintiffs have requested and been allowed
more access to the City's public records than anyone. Plaintiffs' relentless
demands required the City of Cookeville to draw the line at some point,
lest Davidian take over City Hall. The data requested by Plaintiff that
is the subject of this suit will not be his "last territorial demand."
Plaintiffs have ready access to the parking ticket data in paper, hard
copy form, the form in which it is and has been available to the public
generally. Accordingly, Plaintiffs' claim of a First Amendment right of
access to data in electronic form should be dismissed.
Plaintiffs claim they
have a right, predicated on "a First Amendment right of an outlet of communications,"
to be linked to the City's web page. (Second Amended Complaint Par. 28).
Plaintiffs' contention fails at the outset because the City's web page
is not a forum for public discourse at all. See Arkansas Educational Television
Commission v. Forbes, 118 S.Ct. 1633, 1641-1642 (1998). As explained in
the deposition and Affidavit of the city manager, and as shown by a sample
copy of the City's web page attached to the affidavit, no entity other
than the City is allowed to communicate any message at all on the City's
web page. The only "speaker" on the web page is the City, which provides
information to Internet users about City government services and the benefits
and opportunities of the City of Cookeville to residents and potential
The City does allow
the identities only of two entities that promote industry, commerce and
tourism in the area to be accessed directly from the City's web page on
the "Information" page at the line "Local Links." However, the City does
not allow such accessible entities to disseminate any communications or
information directly from the City's web page. Thus, the web page is not
a forum for speech implicating the First Amendment.
Even assuming arguendo,
that the City's web page could be construed as some kind of cyber forum
for others' speech, the web page is at most a non-public forum. The City's
web page constitutes a publication or property owned by the City of Cookeville
which is not by tradition or designation a forum for public communication.
Forbes, 118 S Ct. at 1641; Perry Education Association v. Perry Local Educators'
Association, 460 U.S. 37, 46., 103 S.Ct. 948,955(1983).
The First Amendment
does not guarantee access to property simply because it is
owned or controlled by the government. In addition to time, place, and manner
regulations, the State may reserve the forum for its intended purposes, communicative
or otherwise, as long as the regulation on speech is reasonable and not an effort to
suppress expression merely because public officials oppose the speaker's view. As we
have stated on several occasions, the State, no less than a private owner of property,
has power to preserve the property under its control for the use to which it is lawfully
Perry, 103 S.Ct. at
955 (quotations and citations omitted). The First Amendment does not require
the government to freely grant access to its property to all who wish to
exercise a right to free speech without regard to the nature of the property,
the nature of the speech or the disruption that might be caused by the
speaker's activities. Cornelius v. NAACP Legal Defense and Education Fund,
473 U.S. 788, 800 - 801, 105 S.Ct. 3439, 3447(1985).
In a non-traditional
forum, only when the government has intentionally designated a place or
means of communication as a public forum for speakers on unlimited subjects
does the forum become a public forum for which the exclusion of speech
falls under strict scrutiny. Forbes, 118 S.Ct. at 1641; Cornelius. 105
S.CT. at 3448. The government does not create such a designated public
forum by accident, nor by intentionally permitting only limited discourse.
Forbes, 118 S.Ct. at 1641.
To create a designated
public forum, the government must intend to make the property generally
available to speakers. Id. Allowance of only selective access by permission
only indicates a non-public forum. Id. at 1641-1642. The allowance of speech
linked to a specific subject matter and unsupported by evidence of a purposeful
designation for public use, does not create a public forum. Cornelius 105
S.Ct. at 3450, citing Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211(1976).
Thus a speaker may be
excluded from a non-public forum if he wishes to address a topic not encompassed
within the purpose of the forum, or the speaker is not a member of the
class for whose special benefit the forum was created. Cornelius, 105 S.CT.
at 3451. The exclusion of speech in a non-public forum violates the First
Amendment only when access is denied to a speaker solely to suppress the
point of view espoused on an otherwise includable subject. Forbes, 118
S.Ct. at 1643; Cornelius, 105 S.CT. at 3451. See Fair v. Nebraska Department
of Social Services, 111 F.3d 1408 (8t Cir. 1997) (en banc), (lawful for
government welfare agency to allow certain agencies to communicate information
in its lobby to welfare recipients consistent with the organization's mission,
such as nutritional and job training information); Bronx Household v. Community
School District No.10, 127 F.3d 207, 212-213 (2~ Cir. 1997) (school system
not required to allow religious services in school building merely because
it allowed other non-educational social, civic and recreational meetings
to take place on the premises).
In the instant case,
Defendants initially submit that, as a matter of law, the City's web site
does not constitute a forum for expression of any kind. The only speech
allowed on the City's web site is that beyond the City's own communications
from City officials about City business. (Shipley demo. pp. 55-57; Shipley
Affidavit at Par. 7). No other speakers are allowed to communicate any
message whatsoever. (Id.). Since no other speakers' communications are
allowed, restricting Plaintiffs' access to being linked to the web page
cannot violate the First Amendment. No construction of the First Amendment
would entitle a "speaker" to barge into a government building and disseminate
information in areas where the City does not intend such communications
to take place. Similarly, the First Amendment does not entitle the instant
Plaintiffs to barge onto the City's web page where only City officials'
views are expressed thereon.
To the extent that Plaintiffs
contend that the fact that the web sites of certain other entities that
promote local industry, commerce and tourism can be directly accessed from
the City's web page transmutes the City's web page into some type of forum
at all, the exhibits submitted herewith demonstrate that such an alleged
forum is a non-public forum limited to subject matter of promotion of industry,
commerce and tourism within the City of Cookeville. Even assuming that
allowing the Upper Cumberland Virtual Community: Cookeville organization
and Tennessee Technological University to be "linked" to the City's web
site could give rise to an inference that the City intended to create some
type of forum for expression by others, the City can lawfully limit the
subject matter of such forum to promoting this legitimate governmental
role of the City. Fair, 111 F.3d at 1420-1421; Cornelius, 105 S.Ct. at
3451. The First Amendment does not obligate a city that forges such a laudable
promotional tool to allow any and all speakers to voice their opinions.
Under any other construction of the First Amendment, no government entity
or agency could publish a brochure, newspaper, magazine ad or, as in this
case, create an informational web site, for purposes of providing information
about its operations and promoting the opportunities and benefits the community
has to offer, unless it also allowed the Ku Klux Klan, Republican or Democratic
National Party or unlimited religious and other organizations to be listed
on or included in the City's proprietary, informational medium. Cf Lehman
v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714 (1974) (First Amendment
does not require city to allow political advertisements in city transit
vehicles bearing commercial advertising).
After the City created
its web site, unknown to Mr. Shipley, various commercial links were established
on the City's web site. However, " . . . the government is not required
to indefinitely retain the open character of a facility." Cornelius 105
S.Ct. at 3449. The City of Cookeville has made a conscious decision to
limit "links" to its web page to the subject matter of the promotion of
industry, commerce and tourism in the Cookeville area. This limited, viewpoint
neutral use of government property is lawful. Even assuming that allowing
entities to be linked to the City's web page transforms its electronic
informational brochure into a public forum for expression, the City is
not required to allow The Putnam Pit to have access to this alleged
forum since The Putnam Pit is not limited to this subject matter,
but includes whatever subject areas and opinions that Mr. Davidian cares
to espouse. The decision of the City of Cookeville to limit the subject
matter of its web site to the promotion of commerce is reasonable in light
of the disruptions to the City's ability to communicate its own messages
if it were required to allow any and every other operator of a web site
to be linked to the City's web site.
Moreover, as was a significant
factor recognized by the Supreme Court in Cornelius and Perry, being linked
to the City's web site is hardly the only means of contact with a particular
audience (here Internet users). Plaintiffs have unlimited access to Internet
users through alternative channels, including The Putnam Pit's own
web site. Cornelius, 105 S.Ct. at 3542; Perry, 103 S.Ct. at 959. (Davidian
depo. pp. 90-91). Internet users readily "hit" The Putnam Pit web
site by entering the search term "Cookeville, Tennessee" through any of
the commonly used Internet search engines. (Davidian depo. pp.89-91).
Since the City's establishment
of a web site does not equate to the creation of forum at all, Plaintiffs
cannot establish any First Amendment right to be linked to the web site.
Alternatively, even if the City's web site could be equated by analogy
to a non-public forum designated for speech about a particular subject
matter, limiting "link" access to entities specifically related to the
promotion of industry, commerce and tourism in the Cookeville area and
excluding "speakers" about other subject matters is reasonable, viewpoint
neutral, and affords Plaintiffs unlimited alternative channels of communication.
Accordingly, Plaintiffs have no First Amendment right to be "linked" to
the City's proprietary web page.
Plaintiffs allege at
Paragraph 29 of the second Amended Complaint that the City's rules and
regulations restricting Plaintiffs' news-gathering activities equate to
arbitrary and capricious bureaucratic loopholes violating Plaintiffs' due
process and equal protection rights.
A plaintiff cannot invoke
notions of substantive due process where an explicit constitutional amendment
or textual provision governs the same governmental action at issue. Graham
v. Conner, 109 S.Ct. 1865, 1871(1989). Here, Plaintiffs' claim that the
denial of access to records and/or to be linked to the City's web page
is arbitrary because the denial violates the First Amendment. Since First
Amendment analysis expressly governs the alleged harm at issue, Plaintiffs
cannot rely on an amorphous substantive due process theory.
Second, where government
action does not deprive persons of a particular constitutional guarantee
nor shock the conscience of the court, the action passes constitutional
muster under substantive due process scrutiny so long as it is rationally
related to a legitimate state interest. E.g. Valot v. South East Local
School District Board of Education, 107 F.3d 1220, 1228 (6th
Cir. 1997). Plaintiffs bear the burden to show that the challenged action
is not rationally related to a legitimate state interest. Id.
Similarly, as respects
Plaintiffs' equal protection claim, where government action does not impinge
on the exercise of a fundamental right or operates to the peculiar disadvantage
of a suspect class, the rational basis standard applies. Hampton v. Hobbs,
106 F. 3d 1280, 1286 (6th Cir. 1997); In Re Grand Jury Proceedings, 810
F 2d 580 587 (6th Cir. 1987). Under rational basis scrutiny
of equal protection claims, the government action is presumed to be valid,
and will be sustained if the classification drawn is rationally related
to a legitimate state interest. Valot, 107 F.3d at 1229. Thus, where a
media reporter challenged on both First Amendment and Equal Protection
grounds a grand jury subpoena, the Sixth Circuit held that no First Amendment
right was implicated and upheld the subpoena under a rational basis standard.
In Re Grand Jury Proceedings, 810 F.2 at 587. Under this highly deferential
standard, a distinction between two non-suspect classes is valid if it
is at least debatably based on rational considerations. Id. at 588 (upholding
legislative distinction in a shield law that extended a privilege against
revealing communications between reporters working in print media but not
to those working in the broadcast media); Hampton, 106 F.3d at 1281 (rational
basis existed for regulation designed to reduce litigation expenses associated
with prisoner lawsuits).
In the instant case,
Plaintiffs' second Amended Complaint does not allege what classes of people
are receiving differential treatment. To the extent that Plaintiffs allege
the denial of public records based on the content of The Putnam Pit
or his web site, that issue is currently before the Court with respect
to Plaintiff's First Amendment claim in Davidian v. O'Mara. No.2-97-20
(Davidian I). Thus, Plaintiff should not be allowed to re-litigate that
issue which has been fully addressed in the Summary Judgment Motion in
As the summary judgment
records indicate in both Davidian I and this case indicate, any limited
impediments on Plaintiffs' news-gathering activity are rationally related
to the legitimate governmental interest of attempting to make insatiable
citizen demands for records a manageable task. Plaintiffs' demands for
records and employees' time researching same are unique. (Davidian depo.
pp.64-66, 82; Shipley depo. pp.7-8; Fowler Affidavit). No one else has
imposed similar demands on the time and efforts of Cookeville City employees.
Thus, Plaintiff cannot show disparate treatment amongst similarly situated
record requesters. Protecting the public fisc, including the labor expense
associated with record requests, is a legitimate government interest. Valot,
107 F.3d at 1229. Likewise, the imposition of fee regulations upon recognized
First Amendment activity, such as accessing the courts by filing lawsuits,
has been upheld in the face of due process and equal protection challenges
because they rationally relate to legitimate government financial interests.
Hampton, 106 F.3d at 1286-1287. If Mr. Davidian had his way, he would establish
a satellite office in the Cookeville City Hall and insist that the City
provide him a personal secretary to research City records at government
expense. Placing reasonable notice and cost bearing requirements on an
individual as demanding as Mr. Davidian is rationally related to the efficient
operation of the Cookeville City Hall. Accordingly, Plaintiffs' due process
and equal protection claims should be dismissed.
D. The Court should
decline to exercise supplemental jurisdiction over Plaintiffs' state law
Open Records Act claim and remand that claim to the Putnam County Chancery
Under 28 U.S.C. §1367(c),
district courts may decline to exercise supplemental jurisdiction over
state law claims if; inter alia, the claim raises a novel or complex issue
of state law, all federal claims have been dismissed or, in exceptional
circumstances, there are other compelling reasons for declining jurisdiction.
A state court is better able to determine whether state law supercedes
an allegedly conflicting local ordinance or regulation. Nationwide Mutual
Insurance Company v. Cisneros, 52 F.3d 1351, 1364 (6th Cir.
1995) (Wiseman, District Judge sitting by designation). Where a state law
claim presents a novel issue of state law, any interest in judicial economy
is overridden by deference to the state judiciary. See Id. See also Kauffman
v. Allied Signal. Inc. 970 F.2d 178,187 (6th Cir. 1992) (given
complexity of question of state law, district court's refusal to exercise
supplemental jurisdiction not an abuse of discretion); Doe v. Sundquist,
106 F.3d, 702, 708 (6th Cir. 1997).
Finally, it is within
the Court's discretion to dismiss state law claims in the event that all
federal claims are dismissed. 28 U.S.C. §1367(3).
District courts have
frequently declined to exercise supplemental jurisdiction over state law
claims which involve the interpretation of state statutes with few case
precedents to serve as guidance. E.g. Williams v. Van Buren Township, 925
F.Supp 1231 1238 (E.D. Mich. 1996). Claims raising issues of first impression
under state law are prime candidates for remand even though the Complaint
also asserts a federal question claim See Green v. Zendrian, 916 F. Supp.
493, 496-498 (D. Md. 1996) ("This court's obligation to avoid making an
unnecessary decision in an unsettled area of state constitutional law was
an important factor in this decision to remand the state causes of action
to the circuit court for Baltimore City."); Borges v. City of West Palm
Beach, 858 F.Supp. 174, 177 (S.D. Fla. 1993) (remanding claims involving
novel issues of state law while retaining jurisdiction over § 1983
claim removed to federal court).
Defendants removed this
action based upon the federal question presented in Plaintiffs' §1983
First Amendment claim. Defendants believe a federal district court to be
the proper forum to resolve this federal question claim. However, with
respect to Plaintiffs' claims of a right of access under the Tennessee
Open Records Act, that claim presents a novel question of Tennessee law.
To counsel's knowledge, only one decision of the Court of Appeals deals
with the issue of access to information not maintained in paper format.
The Tennessean v. Electric Power Board of Nashville. 1997 Lexus
141, (Tenn. App. No. 01-A-O1-9606-CH-00255). The Tennessee Supreme Court
has granted application for permission to appeal in that case. The Tennessean
case provides little guidance with respect to the issue of accessibility
of electronic data and counsel is aware of no other Tennessee case law
Since Plaintiffs' Open
Records Act claim presents a novel issue of Tennessee law with little,
if any, guidance from the Tennessee courts, this Court should exercise
its discretion to decline supplemental jurisdiction and remand that claim.
E. Plaintiffs' request
for injunctive relief to force Defendants' compliance with state law is
barred by the Eleventh Amendment.
Although it is unclear
if and to what extent the Eleventh Amendment applies to counties and municipalities,
nonetheless it has generally been held that federal courts should avoid
imposing injunctive relief that would compel state or local officials to
comply with state as opposed to federal laws. See e.g. Pennhurst State
School and Hospital v. Halderman, 465 U.S. 891, 123-124, 104 S.Ct. 900,
920-921 (1986); Kasper v. Board Commissioners for the City of Chicago,
814 F.2d 332, 342(7th Cir, 1987).
While the jurisdictional
bounds of the Eleventh Amendment with respect to the power of a federal
court to force compliance by local government officials with state law
is unclear, the prudential concerns should not be. Based on federalism
principles underlying the Eleventh Amendment and the doctrine of comity,
this Court should decline to hear Plaintiffs' request for an injunction
seeking alleged compliance with state law.
For each and all the foregoing reasons, it is respectfully submitted that Defendants should be granted summary judgment on Plaintiffs' federal claims, and Plaintiffs' state law Open Records Act claim remanded to state court.
1. A "Cookie" file is described in the City Computer Manager, Steve Corder's deposition at Defendant's Exhibit 5, pp. 30-34.
2. A sample printout of the City's web page is attached to Shipley's Affidavit.
printouts of The Putnam Pit web site are submitted as collective
Exhibit S. A sample edition of the printed version of The Putnam Pit
is submitted as Exhibit 9.