Elections – Appeal mooted by unsealing of records

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Where media entities sought to unseal the existing district court docket and filings as well as any future proceedings, and to vacate the nondisclosure order blocking their state public records requests, the appeal was dismissed because the district court effectively granted that relief after briefing in this court concluded.

Background

Media entities appeal from the district court’s denial of their motion to intervene and in support of unsealing and vacating nondisclosure orders entered in two cases that were pending before that court. After briefing in the appeal concluded, the district court unsealed both cases and lifted the nondisclosure orders. This court then requested supplemental briefing on whether these changed circumstances rendered the appeals moot.

Analysis

The media entities sought to intervene in the district court for two particular purposes: (1) to unseal the existing district court docket and filings as well as any future proceedings and (2) to vacate the nondisclosure order blocking their state public records requests. The district court’s March 2021 orders accomplished both purposes. The district court’s docket and filings were unsealed within days of its unsealing orders. Since that time, the media entities—and the public at large—have known the nature of the case and had access to the docket entries. Because the grand jury investigation has ended and the district court’s order released all of the election boards’ records subject to the subpoenas, there’s no viable concern about future hearings or filings in the underlying proceedings that might be sealed.

The media entities challenge this conclusion by pointing to catch-all language in the unsealing orders that they contend could be applied to prohibit access to the records they seek in the state public records request. Specifically, they refer to the language in the district court’s March 2021 orders that “all other materials that would disclose a matter occurring before the grand jury shall remain sealed.” But it would be contradictory for this general language to be used to defeat or nullify the more specific language contained elsewhere in the district court’s order. That language expressly provided for complete unsealing of “the docket and filings” (save for limited redactions) as well as the specific release of the election boards’ records that were subject to the subpoenas that were at the heart of the corollary proceedings to the grand jury investigation.

The court agrees with the government that the “disclose a matter occurring before the grand jury” language in the district court’s March 2021 orders effectuates Rule 6(e)’s general principles of secrecy regarding grand jury proceedings, i.e., ensuring that hearing transcripts would remain secret. It does not apply to the subpoenaed records held by the election boards, which are now released from the subpoena and nondisclosure orders. But even if this were open to dispute, this court holds the government to its representation during oral argument that the original sealing order entered in the district court proceedings in January 2019 is “not in effect” and thus does not bar the state board from disclosing the public records that had previously been subject to any sealing order in the district court proceedings.

The media entities’ second purpose for intervening—to vacate the nondisclosure order impeding their state public records request—has also already been achieved. One of the district court’s March 2021 orders expressly lifted the December 2019 nondisclosure order, which had been entered in direct response to the state public records request. At oral argument, the media entities questioned whether the district court’s March 2021 order also applied to the January 2019 oral nondisclosure order cross-referenced in the December 2019 nondisclosure order. In response to the court’s questioning, the government represented unequivocally that it understood the district court’s March 2021 orders to have lifted both nondisclosure orders.

Despite having achieved both the objectives it sought by intervening, the media entities nonetheless assert that the appeal is not moot because their case falls within the exception for issues “capable of repetition, yet evading review.” At a minimum, this case fails to satisfy the exception because it does not present a “reasonable expectation that [the media entities] will be subjected to the same action again.” This court’s conclusion that this case is moot and does not fall within this exception is bolstered further by the media entities’ remaining arguments for a contrary result, which reflect that they essentially seek an advisory opinion as opposed to meaningful relief in the present appeal.

Dismissed.

In re: Capitol Broadcasting Company Incorporated (Lawyers Weekly No. 001-192-21, 18 pp.) (G. Steven Agee, J.) Case Nos. 20-1651 and 20-1652. Nov. 24, 2021. From E.D.N.C. at Raleigh (Terrence W. Boyle, J.) Michael J. Tadych and Hugh Stevens for Appellants. Christopher Michael Anderson for Appellee.