Commercial Litigation and Arbitration

Do Lawyers Uninvolved in Trial Enjoy a First Amendment Right to Juror Access for CLE Program? — District Court’s Failure to Exercise Meaningful Discretion = Abuse of Discretion

From Clyma v. Sunoco, Inc., 594 F.3d 777 (10th Cir. 2010):

A civil jury rendered a verdict for Plaintiff Clyma and against Defendant Sunoco in the employment discrimination dispute underlying this matter. With cross-appeals pending in this Court, Movant Oklahoma Employment Lawyers Association (OELA) submitted to the district court an "Application for Permission to Interview Jurors for Instructional Purposes" pursuant to N.D. Okla. L.R. 47.2 [which requires judicial permission to approach jurors]. OELA is a group of plaintiffs' employment lawyers providing continuing legal education to employment law litigators. OELA sought leave to contact the jurors "for the purpose of providing educational information to members of the bar regarding jury dynamics in employment law cases." In support of its request, OELA asserted a First Amendment right to juror access. ***

Our research suggests that the substantive question presented in this case may be one of first impression, namely whether the First Amendment requires that attorneys who did not participate in the underlying litigation be given access to jurors to assist them in the preparation of an educational program for the use and benefit of members of a professional organization. The closest case we have found, about which we express no opinion, is the Fifth Circuit's decision in Haeberle [v. Texas Int'l Airlines, 739 F.2d 1019 (5th Cir. 1984)] involving a participating attorney's unsuccessful request to interview jurors post-trial for self-education. T he Fifth Circuit agreed with the district court's "implicit conclusion" in denying the request under a local rule similar to N.D. Okla. L.R. 47.2, that the First Amendment interests of the attorney were "plainly outweighed by the juror's interest in privacy and the public's interest in well-administered justice." Haeberle, 739 F.2d at 1022. See generally Dale R. Agthe, Annotation, Propriety of Attorney's Communication with Jurors After Trial, 19 A.L.R. 4th 1209, at § 3 (1983 & Supp. 2009) (discussing the propriety of attorneys' communication with jurors for self-education).

***[U]nlike the Fifth Circuit in Haeberle, we are unwilling to conclude anything from the district court's terse denial of OELA's request. Whether the First Amendment requires the district court in this case to craft a narrowly tailored order utilizing the least restrictive means to protect the jury and the administration of justice, thereby allowing OELA some form of access to the jurors, is a question we are uncomfortable deciding in the first instance, even more so given the lack of any opposition to OELA's application. The apparently novel issue presented certainly requires the district court to exercise some discretion in ruling upon OELA's application and therein lies the fundamental problem in this case. By simply denying the application in a minute order without any substantive explanation, we cannot say the district court exercised any meaningful discretion. And we have long held that a court's failure to exercise meaningful discretion constitutes an abuse of discretion. For example, in Ohlander v. Larson, 114 F.3d 1531 (10th Cir. 1997), we recognized a "clear example of an abuse of discretion exists where the trial court fails to consider the applicable legal standard or the facts upon which the exercise of its discretionary judgment is based." ... This is a case where such failure occurred.

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