The opinion of the court was delivered by: Simandle, District Judge
MOTION TO INTERVENE
On the second day of trial in this case alleging racial discrimination
in employment by a public agency, the parties reached a settlement
agreement, and the jury was discharged. Presently before this Court is a
motion to intervene in this closed case by The Press of Atlantic City
("The Press") for the limited purpose of learning the terms of the
Settlement Agreement between plaintiffs and defendant Delaware River and
Bay Authority ("DRBA"). Oral argument was heard on September 20, 2002.
The principal issues presented are whether The Press has standing to
intervene, whether intervention is proper, what judicial documents this
Court has authority over, whether access will be granted to the judicial
documents, and whether this Court has jurisdiction to decide access
issues regarding documents that are not judicial documents but are held
by the defendant DRBA and are related to the settlement of this case.
For the reasons stated herein, this Court has decided to grant The
Press' motion to intervene in part to allow The Press to access this
Court's two judicial records that relate to the settlement, namely, a
rough-drafted settlement agreement and the transcript of a court
proceeding where the parties testified and stated their understanding of
the terms of the rough-drafted settlement agreement. This Court will deny
the motion to intervene in part as it pertains to access to the actual
settlement agreement in the DRBA's records. This denial is without
prejudice to The Press' seeking access to the agreement by filing a
complaint that asserts proper jurisdiction and a cognizable claim in
either this Court or a state court.
The facts of the underlying case were discussed at length in this
Court's two summary judgment opinions so will only be recounted here to
the extent that they are pertinent to this matter. See Jackson v. DRBA,
No. 99-3185, 2001 WL 1689880 (D.N.J. Nov. 26, 2001); Jackson v. DRBA,
No. 99-3185 (D.N.J. June 6, 2002).
The underlying dispute involved a consolidated employment case by
plaintiffs Albert Jackson, Donnie McKoy, and Dawn Pitt who alleged racial
discrimination by defendants Delaware River and Bay Authority ("DRBA")
and various supervisory DRBA employees. The plaintiffs, all
African-Americans, were employed by the Cape May-Lewes ferry, which is
operated by the DRBA.
A jury trial in the matter began on June 11, 2002. Then, on June 12,
2002, with a jury empaneled but out of the presence of the jury, the
parties conducted further settlement discussions and reached a settlement
agreement. The parties, through their attorneys, drafted the terms of a
settlement agreement on a legal pad and signed it to indicate their
agreement to its terms, which was referred to as the "memorandum" or
"settlement memorandum" consisting of four pages. Then, under oath, they
placed on the record their understanding of the terms, making reference to
the drafted settlement agreement, and stated their agreement to its
terms. All understood that the settlement agreement included a
confidentiality term. The court proceeding was not formally closed
because no one was present except the interested parties, but it was
undertaken with the understanding that the settlement terms were
confidential by agreement of
the parties. Indeed, confidentiality was an
express term of the agreement. It was agreed on June 12th that the Court
would retain a copy of the settlement memorandum and that the case would
be dismissed as settled, with the Court retaining jurisdiction to enforce
the agreement if necessary. The settlement hearing of June 12, 2002 has
not yet been transcribed, but, like almost any hearing, an interested
member of the public or news gathering community can order a transcript
at its own expense.
This Court then entered an Order that dismissed the action without
prejudice to the right to reopen the action within 60 days if the
settlement was not consummated. The jury was discharged.
Apparently, on June 13, 2002, The Press, a daily newspaper that serves
readers throughout the Greater Atlantic City Region, learned that the
action had been settled. (Press 8/7/02 Br. at 1.) Press reporters,
Michael Diamond and Richard Degener, who had been covering the story,
learned from James Salmon of the DRBA that the terms of the settlement
were confidential and that The Press could not learn of them. (Id.)
The Press' legal counsel, Nelson C. Johnson, Esquire, then wrote
letters to John T. Kelly, counsel for the DRBA, on June 18, 2002, June
25, 2002, and July 15, 2002 requesting the information and explaining its
belief that the agreement is a public record that should be available to
the press under the DRBA's Freedom of Information regulations. (Diamond
Cert., Exs. A, B, C.) When the DRBA did not release the information, The
Press filed this Motion to Intervene on August 12, 2002 for the limited
purpose of learning the settlement terms.
As an initial matter, it is important to note that The Press has
standing to intervene in this matter. The Third Circuit has "routinely
found, as have other courts, that third parties have standing . . . to
obtain access to information or judicial proceedings." Pansy v. Borough
of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994) (citations omitted). A
newspaper has standing even if it "assert[s] rights that may belong to a
broad portion of the public at large. So long as the `injury in fact'
alleged by each intervenor is `a distinct and palpable injury to
himself,' standing should not be denied." Id. (quoting United States v.
Cianfrani, 573 F.2d 835, 845 (3d Cir. 1978)).
Here, therefore, The Press, asserting the public's right to access
judicial information, has standing to petition the court ...