Free-press advocates join N.C. newspaper in secret-settlement dispute

Tuesday, May 12, 1998

Kirsten Mitchel...
Kirsten Mitchell, right, leaves the Federal Courthouse in Raleigh, N.C., Tuesday, Feb. 24, 1998, with her husband, Luke, after being sentenced for criminal contempt and fined $1000. Mitchell, Raleigh bureau chief for The Morning Star of Wilmington, owned by the New York Times Co., was convicted for reading a sealed file mistakenly given her by a court clerk.

Media organizations including the North Carolina Press Association, the Reporters Committee for Freedom of the Press and several major newspapers have recently signed onto a friend-of-the-court brief in support of Kirsten B. Mitchell and The Morning Star of Wilmington, N.C.

The groups have asked the 4th U.S. Circuit Court of Appeals to overturn a decision by U.S. district court Judge Earl Britt.

In December, Britt found Mitchell guilty of criminal contempt of court for reading a previously sealed document handed to her by a federal court clerk, who has since retired.

In January, Britt ordered the New York Times Co.-owned newspaper to pay more than $500,000 to an oil company for publishing a story based on that information. And in February, he went on to fine the Raleigh bureau chief $1,000, pending review by the appeals court.

John H. Meyer, the paper's managing editor, said that an appeal on all aspects of Britt's ruling was submitted to the court on April 30.

“This is something we, along with the top management of the New York Times Company, consider a major assault on the First Amendment,” Meyer said. “This has to do with some very straightforward First Amendment issues, and the precedents are very clear.”

New York Times Co. lawyer George Freeman said: “I'm confident, because the law's on our side. If we're successful, it will confirm what we've thought the law has always protected. If we lose, I would view that as kind of an aberration, and that's the way I've always viewed it.”

The friend-of-the-court brief also includes The Washington Post, Gannett Co. and Dow Jones Co.

The document in question outlined a secret $36 million settlement between Conoco Oil Co. and 178 residents of a trailer park in Wrightsboro, N.C., who sued the oil company claiming it had contaminated their water supply.

Mitchell testified that the settlement agreement was in a stack of documents she received from the clerk. That particular document, she said, was in an envelope that had previously been opened and was marked “opened,” so she read it.

Conoco lawyer Jonathan D. Sasser disagrees. He said that the envelope was in fact sealed shut and that Mitchell peeled it open.

In addition, some other “facts that you won't read about in the editorials,” Sasser said, “are the fact that the court's order to seal the document was inside of the envelope, so she had to read through the court order to get to the [settlement agreement figure] which was attached to that.”

“Also, in a case involving an elderly, deaf man who had been imprisoned by the state in an insane asylum,” Sasser said, “Mitchell sued to have that settlement opened, so she knew the proper procedure to unseal a court document.”

Britt's ruling also supported the theory that Mitchell was familiar with the procedures for sealing and unsealing documents and that she didn't make an effort to determine if the envelope had been opened under a court order.

Said Sasser: “She's being punished for opening an envelope and reading an agreement. This would have happened to anybody, for example a lawyer or another prospective party, but because she's a reporter they use freedom of the press as a defense. But it's pretty clear: There's no First Amendment right to break the law. The clerk made a mistake. That did not give Mitchell the right to exploit it.”

Conoco's brief is due June 1, according to Sasser.