ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES · aclu foundation of san diego & imperial counties ... huminski, 396 f.3d at 86-87. 3 ... aclu foundation of san diego & imperial

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ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES David Blair-Loy (SBN 229235) Sean Riordan (SBN 255752) P.O. Box 87131

San Diego, CA 92138-7131 Tel: (619) 232-2121 Fax: (619) 232-0036 [email protected]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CAROLYN MARTIN,

Plaintiff,

v.

NAVAL CRIMINAL INVESTIGATIVE SERVICE (“NCIS”); MARK D. CLOOKIE, NCIS DIRECTOR; WADE JACOBSON, NCIS ACTING SPECIAL AGENT IN CHARGE, MARINE CORPS WEST FIELD OFFICE; SEAN SULLIVAN, STAFF JUDGE ADVOCATE, MARINE CORPS RECRUIT DEPOT SAN DIEGO; JERRY MARTIN, NCIS SPECIAL AGENT; JOHN DOES 1-7,

Defendants.

Case No. 10-CV-1879 WQH (AJB)

REPLY TO OPPOSITION TO MOTION FOR A PRELIMINARY INJUNCTION

I. INTRODUCTION

The government cites none of the controlling precedent on the First Amendment right to

attend court, much less attempts to demonstrate that this case falls within any of the narrow

exceptions to that fundamental right. The First Amendment guarantees Ms. Martin the right to

attend court regardless of whether she is a witness or counsel requests her presence. Without

specific facts that meet the strict First Amendment standard in an individual case, the government

cannot exclude her from an otherwise open courtroom. It cannot evade this settled First

Case 3:10-cv-01879-WQH -AJB Document 18 Filed 10/28/10 Page 1 of 10

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Amendment rule by relying on cases arising in completely different contexts. Ms. Martin is

otherwise allowed to enter MCRD San Diego, and nothing cited by the government justifies a

violation of her First Amendment right to attend court. If the mere assertion of an alleged

“investigation” were sufficient to violate an individual’s right to attend court, that exception

would swallow the First Amendment rule. It is all too easy for officials to manufacture an

“investigation” of someone they dislike. First Amendment rights cannot depend on so slender a

reed. The ongoing violation of Ms. Martin’s First Amendment rights is per se irreparable harm

and necessarily justifies a preliminary injunction.

II. THE ADMINISTRATIVE PROCEDURE ACT IS NOT THE PROPER VEHICLE

FOR EVALUATING PLAINTIFF’S FIRST AMENDMENT CLAIM; AS DEFENDANTS CONCEDE, THAT CLAIM IS EVALUATED DE NOVO

This motion presents a First Amendment issue, not an Administrative Procedure Act

issue. This case arises under 28 U.S.C. § 1331 for violation of constitutional rights. “It is well

established that federal courts have jurisdiction to provide equitable relief to protect rights

safeguarded by the Constitution.” Clinton v. Babbitt, 180 F.3d 1081, 1087 (9th Cir. 1999) (citing

Bell v. Hood, 327 U.S. 678, 684 (1946)). Though codified in the APA at 5 U.S.C. § 702, the

statutory waiver of sovereign immunity for injunctive relief is not limited to APA cases. It

specifically applies in constitutional cases arising under section 1331. Clinton, 180 F.3d at 1087

(“In 5 U.S.C. § 702, the United States expressly waived sovereign immunity in non-statutory

review actions for non-monetary relief brought under 28 U.S.C. § 1331.”) (quotations omitted);

see also Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233 (10th Cir. 2005) (recognizing, in

case raising constitutional issues, that the APA’s waiver of sovereign immunity is not limited to

suits “under” the APA); Chamber of Commerce v. Reich, 74 F.3d 1322, 1329 (D.C. Cir. 1996)

(“The APA’s waiver of sovereign immunity applies to any suit whether under the APA or not.”).

The Ninth Circuit therefore reviews constitutional claims separately from claims for review under

the APA, including in cases against the armed forces. See Hensala v. Department of Air Force,

343 F.3d 951 (9th Cir. 2003). In any event, the government concedes that even under the APA,

the First Amendment claim “is subject to de novo review.” Opposition at 6:12. The Court thus

owes the government no deference on First Amendment issues.


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III. MS. MARTIN IS SUBSTANTIALLY LIKELY TO PREVAIL ON THE MERITS, BECAUSE THE GOVERNMENT ADVANCES NOTHING TO JUSTIFY INFRINGING HER FIRST AMENDMENT RIGHTS

This is not a close issue. Ms. Martin is likely to prevail on the merits because the

government has not advanced any overriding interest that justifies restricting her First

Amendment right to attend court. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986).

The government does not and cannot dispute that under the First Amendment, military courts

must be open to the public on the same terms as civilian courts. Nor does the government dispute

that an individual such as Ms. Martin may enforce her First Amendment right to attend court even

if no one else is excluded. Huminski v. Corsones, 396 F.3d 53, 83-85 (2d Cir. 2004). The First

Amendment violation is not cured by the assertion that Ms. Martin may attend court in the limited

circumstances where she is a witness or defense counsel requests her presence and the judge

approves. The First Amendment guarantees her the unlimited right to attend any otherwise open

court proceeding, unless any restriction is properly justified under the controlling law.

The government has not remotely justified its restriction of Ms. Martin’s access to

otherwise open court proceedings. The only purported basis for restricting Ms. Martin’s right to

attend court is the conclusory allegation that she is under “investigation.”1 At best, Defendant

Sullivan asserts he was “informed” by anonymous “NCIS personnel and an Assistant U.S.

Attorney” that Ms. Martin is “under investigation” for certain “allegations,” the sources of which

are also not named. Sullivan Decl. ¶ 9. Though the rules of evidence are relaxed in preliminary

injunctions, these assertions bear virtually no indicia of reliability. See Flynt Distrib. Co. v.

Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (while court may give inadmissible evidence “some

weight” on a motion for a preliminary injunction, the purpose of doing is to “prevent[] irreparable

harm before trial”). It is unclear how many levels of hearsay are involved, and it is almost

1 The alleged “investigation” may well amount to baseless retaliation against Ms. Martin for the

effective performance of her job as a defense investigator. See Complaint ¶¶ 2, 26; cf. Huminski,

396 F.3d at 87 (“[C]losing the courtroom door must in fact be substantially motivated by such an

appropriate consideration. A professed security concern cannot, for example, be used to mask an

improper reason for closing the courtroom door, most particularly aversion to the views of the

person who seeks access.”). The Court need not resolve that issue on this motion, as the

government’s position on access to court is unjustified on its face.


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impossible to test the veracity of such vague allegations. The Court should therefore accord them

little if any weight.2

Moreover, the government’s position appears to be somewhat of a moving target. Prior to

this litigation, Sullivan informed the chief military defense counsel at MCRD San Diego that Ms.

Martin was banned from Building 12. Martin Decl. ¶ 4. In e-mail exchanges unrelated to this

case, concerning Ms. Martin’s ability to provide in-court testimony at MCRD San Diego, Captain

Justin Nahama, one of Sullivan’s subordinates, asserted on September 30 that Ms. Martin was

“barred from the building.” See Ex. A; Supp. Martin Decl. ¶ 3. However, another subordinate,

Major Peter Houtz, stated on October 7, “Ms. Martin is not ‘barred from the building’” and only

needed to make an appointment for access. See Ex. B. Now, Sullivan presents yet another

position, asserting that Ms. Martin may enter the courtroom only under specified conditions but

may not enter the remainder of the building. Given that the government’s position has apparently

been confused, the earnestness of Sullivan’s concerns about Ms. Martin’s presence in the

courtroom is open to question.

Even taking the government’s assertions at face value, nothing submitted by the

government justifies restricting Ms. Martin’s right to attend court. It should go without saying

that the mere assertion of an “investigation” is woefully inadequate to infringe an individual’s

First Amendment rights. As military courts have recognized, the “mere utterance” of an alleged

interest cannot justify infringing the First Amendment right of access to court. Cf. United States

v. Hershey, 20 M.J. 433, 436 (Ct. of Mil. App. 1985) (“While it may be permissible under certain

circumstances to exclude spectators during the testimony of a victim of tender years, that must be

decided on a case-by-case basis and not based on the mere utterance of the word ‘embarrassment’

as was done here.”); ABC, Inc. v. Powell, 47 M.J. 363, 366 (Ct. App. Armed Forces 1997)

(exclusion from court on “unsubstantiated reasons” is unconstitutional).

Assuming some alleged “investigation” is ongoing, its existence does not remotely

2 There are other reasons to doubt that NCIS is investigating Ms. Martin in earnest. Presumably

federal law enforcement officers do not “charge” an individual with a felony on a District Court

Violation Notice when they have a legitimate investigation against that individual. Yet that is

exactly what NCIS officers did to Ms. Martin. See Compl. ¶ 48-51; Compl. Ex. A.


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constitute the kind of substantial, much less overriding, interest necessary to exclude an

individual from an open courtroom. Even an indicted person is presumed innocent, and the same

is true, only more so, for a person allegedly under “investigation,” against whom no charges have

been filed. The government has identified nothing remotely constituting “a threat to person,

property, or decorum” that would justify restricting Ms. Martin’s First Amendment right to attend

court. Huminski, 396 F.3d at 86-87.3 Whatever the scope of the government’s authority to

restrict access to the remainder of Building 12, it cannot curtail Ms. Martin’s right to attend court

on the flimsy basis it has asserted here.

The government’s assertion that the existence of an alleged “investigation” is sufficient to

restrict an individual’s access to judicial proceedings is astounding.4 On the government’s

position, for example, a reporter could be excluded from some or all court proceedings merely

because of an alleged investigation into whether the reporter improperly obtained and published

classified information. The potential for abuse of such a position is limitless. To curtail the First

Amendment right of a lawyer, investigator, reporter, or citizen to attend court, the government

would only need to point to – or manufacture – an “investigation” of some alleged wrongdoing.

Accordingly, there can be no “under investigation” exception to the First Amendment right of

access to court.

There is also a First Amendment problem with an administrator such as Sullivan imposing

a categorical restriction on attending court proceedings, as opposed to a judge issuing an order

banning an individual or the public from particular proceedings based on particularized reasons.

3 Ms. Martin does not concede that a “substantial reason” is sufficient to curtail her access to

court. Huminski, 396 F.3d at 86. Ms. Martin believes that the “overwhelming justification”

standard applies here, and Defendants have not argued otherwise. But the Court need not resolve

that issue, because the government has not advanced even a “substantial reason” to limit her right

to attend court.

4 Defendants’ recitation of the facts about the investigation appears to be selective. Lt. Col.

Sullivan did not learn of the alleged federal criminal investigation of Ms. Martin in July 2010, as

his declaration suggests. Sullivan Decl. ¶ 9. Lt. Col. Sullivan told a military judge at a pre-trial

hearing in November 2009 of “an ongoing NCIS investigation into whether [Ms. Martin]

allegedly told one of the main gate guards that she was an NCIS agent.” See Ex. C (transcript of

proceeding in U.S. v. Nash). It seems unlikely that a genuine “investigation” of a single instance

of alleged misconduct could be pending for so long without producing some result.


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It is generally the place of the court, not the prosecutor, to make “findings adequate to support the

closure.” Waller v. Georgia, 467 U.S. 39, 48 (1984); see also Rule for Courts-Martial 806(b)

(identifying military judge as officer with the conditional power to exclude a member of the

public from court based on specific “findings”). While perhaps administrative personnel may

exclude a person without making detailed findings in order to protect the court from an imminent

threat on a particular occasion, any such exclusion must still be narrowly tailored to the perceived

threat.5 See Huminski, 396 F.3d at 86-88. Here, by contrast, the restriction on Ms. Martin’s right

to attend court is “wildly disproportionate to the perceived threat.” Id. at 87; cf. Waller, 467 U.S.

at 48 (chastising judge’s “broad and general” findings which did not “justify closure of the entire

hearing”).

Instead of citing, much less engaging, any of the controlling First Amendment law, the

government relies on cases discussing the military’s power to exclude civilians from military

installations, which have nothing to do with this motion. First, MCRD is generally open to

civilians. Second, no one has banned Ms. Martin from MCRD San Diego. Third, none of those

cases address judicial proceedings or suggest the government can restrict an individual’s right to

attend court. Both civilian and military law guarantee a First Amendment right to attend court.

That right would be illusory if it could be defeated by the simple assertion of unfettered military

authority to restrict access to a base. Cf. Richmond Newspapers, 448 U.S. at 598 (Brennan, J.,

concurring) (“unfettered discretion” to exclude public from court violates First Amendment).

Indeed, the Court of Appeals for the Armed Forces expressly repudiated the proposition that a

commander who directed an investigation may in his sole discretion close a pre-trial proceeding

to the public. ABC, 47 M.J. at 365-66.

In any event, the cases on which the government relies are distinguishable. Each dealt

5 Defendant does not explain how Ms. Martin’s presence in Building 12 could reasonably be

expected to result in the compromise of sensitive information. The computers in Building 12 can

only be accessed with individually coded security cards. Ex. D. (Vokey Decl.) ¶ 6. Attorneys

working in that building have traditionally worked to ensure that their hard files are properly

safeguarded. Id. ¶ 7. Additionally, Lieutenant Colonel (Retired) Colby Vokey, USMC, the

former Regional Defense Counsel for the Western Region of the United States, attests to Ms.

Martin’s professionalism and respect for privacy. Id. ¶ 8.


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with a claimed constitutional right that does not apply on military bases and would have

interfered with a significant military prerogative. Cafeteria Workers v. McElroy, 367 U.S. 886

(1961) (no due process right to a security clearance); Greer v. Spock, 424 U.S. 828 (1976) (no

First Amendment right to engage in partisan campaigning or distribute publications that constitute

a danger to military loyalty, discipline or morale); United States v. Albertini, 472 U.S. 675 (1985)

(no First Amendment right to enter military installation after exclusion due to conviction for

activities including pouring animal blood on government property at the installation). Here there

is simply no question that the First Amendment right of access to court applies in courtrooms on

military bases. See Mem. in Supp. of Mot. for Prelim. Inj. at 3-5. Nothing about the alleged

“investigation” of Ms. Martin remotely endangers the military prerogatives at issue in Cafeteria

Workers, Greer, and Albertini, in light of the First Amendment right of access to court and

especially considering that Ms. Martin is not barred from MCRD in general.

Finally, Ms. Martin’s exclusion from a military installation in South Carolina has nothing

to do with her right to attend court at MCRD San Diego. Though Ms. Martin contests the

government’s version of events in South Carolina, see Ex. E, the Court need not resolve that

dispute, because even assuming the government’s version to be true, she did nothing justifying

any restriction on her right to attend court in San Diego. In South Carolina, the government’s

witness testified that Ms. Martin told her “that she couldn’t tell me not to talk to NCIS” but that

people Ms. Martin had talked to “felt pressured into answering questions,” “that I didn’t have to

talk to them if I didn’t want to” and that “other people that she talked to had a really negative

experience with NCIS…”6 Opp. Ex. C at 4. Assuming Ms. Martin made them, none of those

statements remotely approach the level of interfering with a witness or obstructing justice. The

statements correctly indicate a witness may choose whether to talk to NCIS and merely conveyed

experiences of other persons who had done so. That is not illegal.

Indeed, prosecutors often advise witnesses they need not speak with the defense and imply

6 Even under the relaxed evidentiary standards at the preliminary injunction stage, the Court here

should disregard Defendants’ Opposition Exhibit C, as it is double hearsay and largely

cumulative of the witness’s hearing testimony, which is the much more reliable account of the

witness’s statements. Cf. Flynt Distrib., 734 F.2d at 1394.


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that defense counsel or investigators may not always be trustworthy. See, e.g., Ex. F (DOJ

Victim Witness Handbook Excerpt) (“you may be contacted by the defense … While you may

discuss the case with them, you also have the right not to talk to them … any statement that you

make … may be used to try to challenge or discredit your testimony … If you decide to sign a

statement, make sure you read it over very carefully … Ask to have a copy of any statement that

you make … If you elect to have an interview with the defendant’s lawyer or investigator, you

may want to have present an additional person chosen by you to witness the interview. You may

discuss the case with anyone you wish. The choice is yours, but it is not always a good idea.”);

Ex. G (California Attorney General’s Crime Victim’s Handbook) (“You may be contacted by

someone working on behalf of the defendant … but you are under no legal obligation to talk to

them or anyone else concerning the crime outside of the court…. If you choose to be interviewed

by the defendant’s attorney or representative, you should also notify the investigating officer or

prosecutor before having an interview with the defendant’s representative”). The statements

attributed to Ms. Martin differ little in substance from the above assertions and implications made

by federal and state prosecutors.

In any event, as a matter of law, the administrative action taken in South Carolina cannot

justify infringing Ms. Martin’s First Amendment right of access to court in San Diego. Even

criminal convictions do not per se justify restricting a person’s right to attend court. Moreover,

Lt. Col. Sullivan’s declaration makes no reference to the South Carolina events. Defendants do

not claim that he knew of those events in determining to take action against Ms. Martin. As a

result, it is questionable why the government discusses them at all, except possibly in an attempt

to divert the Court from the merits of the First Amendment issue.

IV. MS. MARTIN IS SUFFERING IRREPARABLE HARM FROM THE ONGOING

VIOLATION OF HER FIRST AMENDMENT RIGHTS

The government cannot dispute that the loss of First Amendment freedoms “for even

minimal periods of time, unquestionably constitutes irreparable injury.” S.O.C., Inc. v. County of

Clark, 152 F.3d 1136, 1148 (9th Cir. 1998). The government incorrectly suggests that there is no

irreparable injury here because there was no sweeping closure of entire proceedings. Opp. at 9-10


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(citing dicta from ABC, 47 M.J. at 366). But while wholesale closure of a proceeding certainly

constitutes an exceptional constitutional harm, so too does the exclusion of “all or portions of the

public.” United States v. Story, 35 M.J. 677, 678 (Army Ct. Mil. Rev. 1992), aff’d, 37 M.J. 270

(1993) (emphasis added). There can be “no doubt … that an identified non-party … who is

denied access to court has and can assert a presumed right of access even if he or she is the only

person excluded.” Huminski, 396 F.3d at 83. It is undisputed that Ms. Martin often attends

hearings and trials in military courts when she is not testifying. Martin Decl. ¶ 3. Indeed, even if

not a witness or part of the defense team, Ms. Martin might be the “someone in attendance” at a

particular hearing who “may be able to furnish evidence in chief or contradict ‘falsifiers.’”

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 570 n.8 (1980). The government’s

ongoing violation of Ms. Martin’s First Amendment rights therefore necessarily creates

irreparable harm.

V. THE EQUITIES AND PUBLIC INTEREST NECESSARILY FAVOR MS.

MARTIN

Defendants’ arguments about the equities and public interest largely rehash their

inapposite merits arguments. But as discussed at length above and in Ms. Martin’s initial brief,

the First Amendment right of access to court proceedings cannot be subject to the unfettered

discretion of asserted command authority. It has long been, and still is, the case that the Ninth

Circuit “clearly favors granting preliminary injunctions to a plaintiff . . . who is likely to succeed

on the merits of his First Amendment claim.” Klein v. City of San Clemente, 584 F.3d 1196,

1208 (9th Cir. 2009), cert. denied, 130 S. Ct. 1706 (2010). Even after Winter v. NRDC, a

showing of likelihood of success on the merits is the primary consideration in issuing a

preliminary injunction when First Amendment rights are implicated. Id. at 1207 (“If we were in

doubt whether [plaintiff] satisfied the remaining requirements for injunctive relief, we would

remand to allow the district court to assess the likelihood of irreparable injury and to balance the

equities. Given the free speech protections at issue in this case, however, it is clear that these

requirements are satisfied.”); see also Klein v. City of Laguna Beach, 2010 U.S. App. LEXIS

11444, *8 (9th Cir. 2010) (suffering an irreparable loss of First Amendment freedoms necessarily


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means the balance of equities tips in his favor).

Furthermore, the Ninth Circuit has “consistently recognized the significant public interest

in upholding free speech principles.” Klein v. City of San Clemente, 584 F.3d at 1208. See also

Thalheimer v. City of San Diego, 2010 U.S. Dist. LEXIS 13045, *52-53 (S.D. Cal. 2010)

(Gonzalez, C.J.) (because plaintiffs demonstrated a likelihood of success on the merits on First

Amendment grounds, plaintiffs had met their burden of demonstrating that an injunction was in

the public interest). Therefore, as a matter of law, a plaintiff who is likely to prevail on a First

Amendment claim necessarily demonstrates that the balance of equities and the public interest

favor a preliminary injunction.

VI. CONCLUSION

For the foregoing reasons, the Court is respectfully requested to enter a preliminary

injunction upholding Ms. Martin’s First Amendment right to attend court at MCRD San Diego.

Dated: October 28, 2010 Respectfully submitted,

s/ Sean Riordan

Sean Riordan

Attorney for Plaintiff

[email protected]


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ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES David Blair-Loy (SBN 229235) Sean Riordan (SBN 255752) P.O. Box 87131

San Diego, CA 92138-7131 Tel: (619) 398-398-4485 Fax: (619) 232-0036 [email protected] [email protected]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CAROLYN MARTIN,

Plaintiff,

v.

NAVAL CRIMINAL INVESTIGATIVE SERVICE (“NCIS”); MARK D. CLOOKIE, NCIS DIRECTOR; WADE JACOBSON, NCIS ACTING SPECIAL AGENT IN CHARGE, MARINE CORPS WEST FIELD OFFICE; SEAN SULLIVAN, STAFF JUDGE ADVOCATE, MARINE CORPS RECRUIT DEPOT SAN DIEGO; GERALD “JERRY” MARTIN, NCIS SPECIAL AGENT; JOHN DOES 1-7,

Defendants.

Case No. 10-CV-1879 WQH AJB

PROOF OF SERVICE

The undersigned hereby certifies that he is an employee for the American Civil Liberties

Union Foundation of San Diego & Imperial Counties, P.O. Box 87131, San Diego, California

92138-7131; is a person of such age and discretion to be competent to serve papers; and that on

October 28, 2010, he served copies of the following document(s):


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1. REPLY TO OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

2. EXHIBITS A-F

__X__ by transmitting via e-filing the document(s) listed above to the Case Management/

Electronic Case filing system, through which all counsel of record are deemed served.

_____ by transmitting via facsimile the document(s) listed above to the fax number(s) specified

on this date before 5:00p.m.

_____ by placing the document(s) listed above in a sealed envelope with certified postage

thereon fully prepaid, in the United States mail at San Diego, California addressed as set

forth below.

_____ by placing the document(s) listed above in a sealed envelope with postage thereon fully

Prepaid, and deposited with UPS Overnight at San Diego, California to the addressee(s)

specified hereto.

______ by personally delivering the document(s) listed above to the person(s) at the address(es)

set forth below.

I declare under penalty of perjury, under the laws of the State of California, that the foregoing is

true and correct. Executed on October 28, 2010, at San Diego, California.

s/ Sean Riordan____

Sean Riordan


Documents

ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES · aclu foundation of san diego & imperial counties ... huminski, 396 f.3d at 86-87. 3 ... aclu foundation of san diego & imperial