Margery WAKEFIELD, Plaintiff,
The CHURCH OF SCIENTOLOGY OF CALIFORNIA, Defendant-Appellee,
Times Publishing Company and Tribune Company, Appellants.
United States Court of Appeals,
Aug. 12, 1991.
Religious organization sought orders to show cause why plaintiff, which had
brought suit against organization, should not be held in civil and criminal
contempt for violating confidentiality requirement of settlement agreement.
Newspapers' motions for access to contempt hearings and related pleadings,
proceedings, and records, to determine if their reporters' qualified privilege
prevented them from being compelled to testify, was denied by the United States
District Court for the Middle District of Florida, No. 82-1313-CIV-T-10,
Elizabeth A. Kovachevich, J., and newspapers appealed. The Court of Appeals,
Hatchett, Circuit Judge, held that newspapers' appeal from order denying them
access to contempt hearings did not fall within capable of repetition, yet
evading review exception to mootness doctrine.
 FEDERAL COURTS
Newspapers' appeal from order denying newspapers' motions for access to
evidentiary hearing at which hearing newspaper reporters had been subpoenaed
did not satisfy requirements for capable of repetition, yet evading review
exception to mootness doctrine after hearing was held; and newspaper which had
reported on case did not seek to intervene until two years after closure, and
case involved unique circumstances, such as plaintiff's "constant disregard and
misuse of the judicial process," on which closure order was based. U.S.C.A.
 FEDERAL COURTS
Parties may make alternative claims, change claims, or sometimes file
inconsistent claims, but may not do so in appellate court; Court of Appeals
reviews case tried in district court and does not try ever-changing theories
parties fashion during appellate process.
 FEDERAL COURTS
When addressing mootness, Court of Appeals determines whether judicial activity
 FEDERAL COURTS
Three exceptions to mootness doctrine exist: issues are capable of repetition
yet evading review; appellant has taken all steps necessary to perfect appeal
and to preserve status quo; and trial court's order will have possible
collateral legal consequences.
 FEDERAL COURTS
Capable of repetition, yet evading review exception to mootness doctrine
applies if challenged action is of too short a duration to be fully litigated
prior to its cessation, and reasonable expectation exists that same complaining
party will be subject to same action again.
 FEDERAL COURTS
Mere hypothesis or theoretical possibility is insufficient to satisfy test for
capable of repetition, yet evading review exception to mootness doctrine.
*1227 Patricia F. Anderson, St. Petersburg, Fla., for appellants.
Michael Lee Hertzberg, New York City, for defendant-appellee.
Appeal from the United States District Court for the Middle District of
Before HATCHETT and COX Circuit Judges, and HENDERSON, Senior Circuit Judge.
HATCHETT, Circuit Judge:
We dismiss this case, which at one time touched upon important first
amendment issues, because the case has been rendered moot.
Margery Wakefield and three other plaintiffs alleged that the Church of
Scientology of California (the Church) committed various wrongful acts against
them. On August 14, 1986, Wakefield, the other plaintiffs, and the Church
entered into a settlement agreement which included provisions enjoining
Wakefield and the other plaintiffs from discussing, with other than immediate
family members, (1) the substance of their complaints against the Church, (2)
the substance of their claims against the Church, (3) alleged wrongs the Church
committed, and (4) the contents of documents returned to the Church. The
district court approved the settlement agreement, sealed the court files, and
dismissed the case with prejudice. The dismissal order specifically gave the
court jurisdiction to enforce the settlement terms. Nonetheless, Wakefield
publicly violated the settlement agreement's confidentiality provisions.
In 1987, both the Church and Wakefield filed motions to enforce the settlement
agreement. The district court requested that a magistrate judge address
whether either party had violated the settlement agreement. On September 9,
1988, the magistrate judge issued a report and recommendation which concluded
that Wakefield had violated the settlement agreement, and the Church had fully
complied with the agreement's terms and conditions. On November 3, 1988, the
Times Publishing Company (the Times), which publishes the St. Petersburg Times,
moved to intervene in this lawsuit, to unseal the court files, and to gain
access to any contempt hearings. In its motions, the Times alleged that the
sealed court records and closed proceedings violated its and the public's
constitutional and common law rights of access to judicial proceedings and
records. In opposing the motions, the Church argued that they were untimely
and barred by laches. On May 16, 1989, the district court adopted the
magistrate judge's report, issued a preliminary and permanent injunction
against Wakefield, and referred the Times's motion to intervene to the
Notwithstanding the court's injunction, Wakefield continued to publicize the
lawsuit. Thus, on July 18, 1989, the Church sought orders to show cause why
Wakefield should not be held in civil and criminal contempt. The Church also
sought damages, costs, and attorney's fees. To support its requests, the
Church submitted excerpts of newspaper, television, and radio interviews
attributed to Wakefield.
On August 15, 1989, the magistrate judge submitted a report and recommendation
addressing Times's motion to intervene. He recommended that absent a
compelling reason, all future proceedings and the court files, except for
documents pertaining to the settlement, should be open and that Times be
allowed to intervene. Due to events discussed later in this opinion, the
district court has not issued a final order on these issues.
The district court scheduled an evidentiary hearing to address the
Church's contempt motion. As witnesses at the hearing, the Church subpoenaed
reporters for the St. Petersburg Times and the Tampa Tribune. Consequently,
the Times, and the Tribune Company, which publishes the Tampa Tribune (the
newspapers), filed motions for access to hearings, pleadings, proceedings, and
records related to the contempt hearings in order to determine if
*1228 their reporters' qualified privilege prevented them from being
compelled to testify.
On September 11, 1989, the district court held an in camera proceeding to rule
on the newspapers' motions. The district court denied the newspapers' motions
for access to the hearings because the Church subpoenaed the reporters only to
establish the source and accuracy of the statements attributed to Wakefield.
The district court also held that the reporters waived any privilege by
publicly attributing the statements to Wakefield.
In considering the newspapers' motions, the district court stated, "due to the
plaintiff's complete and utter disregard of prior orders of this court, the
court concludes that any restriction short of complete closure would be
ineffective." It further held that "[p]ublicity of a private crusade has
become her end, not the fair adjudication of the parties' dispute. In doing
so, plaintiff is stealing the court's resources from other meritorious cases."
Thus, the district court closed the contempt proceedings to the public and the
press referring further proceedings to a United States Magistrate Judge. The
magistrate judge began contempt hearings on September 11, 1989.
On September 18, 1989, the newspapers filed a Notice of Appeal, a Motion for
Expedited Appeal, and a Motion for Stay Pending Appeal. On September 29, 1989,
this court granted expedited appeal, but denied the newspapers' emergency
motion for a stay of the contempt proceedings pending resolution of the
On appeal, the newspapers argued that the closure violated their first
amendment and common law rights of access to judicial proceedings. They
contended that the public's right of access outweighs the rationale for keeping
the settlement agreement confidential. The Church contended that Wakefield's
"open and defiant contumacious conduct" mandated closure and that the
newspapers did not enjoy an absolute constitutional or common law right of
access to civil proceedings.
During our first oral argument, we learned that the newspapers had never
requested the district court to allow access to the contempt hearing
transcripts. Since the hearings had been completed before oral argument, we
issued a November 17, 1989, order which temporarily remanded the case to the
district court for the limited purpose of allowing the newspapers to seek
access to the contempt hearing transcripts. The order further instructed the
district court to rule on such a request "within a reasonable time."
On June 25, 1990, eight months after the last contempt hearing, the magistrate
judge submitted a report and recommendation which concluded that Wakefield had
willfully violated the court's injunction. He further held that while a civil
contempt finding could be appropriate, he suggested the case be referred to the
United States Attorney's office for prosecution on the criminal contempt
charges. The district court has not issued a final order addressing whether
Wakefield is in civil or criminal contempt.
Furthermore, almost a year after our temporary remand, the district
court had not ruled on the newspapers' requests for access to the contempt
hearing transcripts. Thus, the newspapers filed a motion requesting that this
court clarify the "reasonable time" language in the November 17, 1989, order.
In order to speed finalization of this matter, this court denied the
clarification motion, but issued an order stating, "[a]fter December 3, 1990,
this court will entertain a request for relief addressing the delay that has
occurred since our remand to the district court provided that relief has been
sought." After this clear signal for action, the district court issued a
November 21, 1990, order unsealing the civil contempt proceeding transcripts,
except for those portions which disclosed the settlement agreement terms.
On March 21, 1991, the newspapers filed a motion requesting a second oral
argument, which the Church opposed. On April 18, 1991, we granted the
newspapers' motions for a second oral argument, instructing the parties to
address (1) whether the *1229 case was moot, (2) whether a case or
controversy remained, and (3) whether a reasonable possibility of settlement
The sole issue we discuss is whether this case is moot.
The newspapers argue that this case is not moot because the court can grant
relief which will affect the parties by ordering release of all the judicial
documents relating to the contempt hearing and the unreleased transcript pages.
The Church contends that this case is moot and does not present a case or
controversy which this court may address. It emphasizes that the newspapers
initially sought access to the proceedings to represent their reporters, then
under subpoena. It argues that this aspect of the case is absolutely moot
because the Church released the reporters from their subpoenas.
 This case, at its beginning, presented an interesting and important
issue: under what circumstances may civil judicial proceedings be closed to
the public and the press? Unfortunately, the newspapers did not prevail in
their efforts to halt the proceedings; this court denied their motions to stay
the proceedings pending the expedited appeal. The newspapers argue that we
should address whether a constitutional right of access to civil proceedings
exists. To do so, however, would constitute an advisory opinion. The hearing
that is the subject of this case terminated almost two years ago. Although the
newspapers have an interest in the constitutional question, perhaps for future
cases, no "live" case or controversy remains in this case. The hearings have
been completed, and the newspapers have been given the hearing transcripts.
FN1. It is also noteworthy that the newspapers have changed their claims
as the case has progressed. They first sought access on constitutional and
common law grounds, then they sought access to protect their reporters from
compelled testimony. Finally, with full knowledge that the hearings had
been completed, the newspapers never sought the hearing transcripts until
prompted to do so by this court. Now, with all but eleven pages of the
hearing transcript, the newspapers seek the eleven pages on constitutional
and common law grounds. Many of the theories presented to this court were
never presented to the district court. Parties may make alternative
claims, may change claims, may sometimes file inconsistent claims, but
parties may not do so in the appellate court. This court reviews the case
tried in the district court; it does not try ever-changing theories
parties fashion during the appellate process.
 When addressing mootness, we determine whether judicial activity remains
necessary. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45
L.Ed.2d 343 n. 10 (1975). "A case becomes moot, and therefore, nonjusticiable,
as involving a case or controversy, 'when the issues presented are no longer
"live" or the parties lack a legally cognizable interest in the outcome.' "
B & B Chemical Co. v. United States E.P.A., 806 F.2d 987, 989 (11th
Cir.1986) (quoting United States v. Geraghty, 445 U.S. 388, 396, 100 S.Ct.
1202, 1208, 63 L.Ed.2d 479 (1980)).
 Three exceptions to the mootness doctrine exist: (1) the issues
are capable of repetition, yet evading review; (2) an appellant has taken all
steps necessary to perfect the appeal and to preserve the status quo; and (3)
the trial court's order will have possible collateral legal consequences.
B & B Chemical Co., 806 F.2d at 990.
The newspapers argue that this case falls within the "capable of repetition
yet evading review" mootness exception. They argue that a case is not moot if
this court can grant relief that affects the interested parties. Airline
Pilots Association v. U.A.L. Corp., 897 F.2d 1394 (7th Cir.1990); Wilson v.
U.S. Department of Interior, 799 F.2d 591 (9th Cir.1986). Thus, they assert
that we should order the release of all the judicial documents related to the
contempt hearing and the unreleased transcript pages. In their view, these
documents are essential so that the public can understand what happened to
 *1230 The newspapers do not meet the exceptions' two conditions in
order for the capable of repetition, yet evading review exception to apply:
(1) the challenged action must be of too short a duration to be fully litigated
prior to its cessation, and (2) a reasonable expectation must exist that the
same complaining party will be subject to the same action again. Weinstein
v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975).
As an example of the action's short duration, the newspapers assert that they
acted promptly by filing during the contempt proceeding's adjournment a motion
for a stay pending the appeal of the district court's closure. The record
refutes this assertion. The underlying case has been in the federal court
system since November 29, 1982. Even prior to the 1986 closure, the Times
reported on the Wakefield case, but not until 1988, did Times seek to
intervene. Additionally, the newspapers did not appeal the closure order until
the contempt hearing had been adjourned for a continuance. These facts refute
the newspapers' assertions of the action's short duration.
Likewise, the newspapers cannot satisfy the second condition. In addressing
the second condition, the newspapers argue that if this court does not offer
judicial guidance, a "reasonable expectation" exists that this controversy will
occur again. They specifically state that they "continue to expect and suspect
that secret church proceedings are being or will be held," and suspect that the
Church will bring contempt proceedings against the other plaintiffs. The
record does not support these suspicions.
 This case involves unique circumstances which are not easily repeated.
Wakefield's constant disregard and misuse of the judicial process mandated
partial closure. Since Wakefield's contempt hearing concluded, the Church has
not instituted nor has the district court conducted any additional contempt
hearings, show cause hearings, or in camera proceedings. Furthermore, nothing
indicates that the Church contemplates these actions. Although the newspapers'
suspicions that secret church and contempt proceedings will occur constitute a
theoretical possibility, a mere hypothesis or theoretical possibility is
insufficient to satisfy the test stated in Weinstein. Morgan v. Roberts,
702 F.2d 945, 947 (11th Cir.1983). Thus, no "reasonable expectation" exists
that this controversy will occur again. [FN2]
FN2. As earlier noted, the hearings were not halted because the newspapers
did not prevail on their motions for stay pending appeal. We must assume
that in the proper cases stays will be granted.
The newspapers' interest in the important constitutional issue which was
once alive in this case is understandable. Nevertheless, we must wait for
another case with a current controversy, and with a well-developed record to
address the issue. The fact that much of the delay in this case is
attributable to a busy and overburdened federal district court is unfortunate.
Because the newspapers cannot satisfy the capable of repetition, yet evading
review requirements, this case is moot. Accordingly, this case is dismissed.
FN3. We express no opinion on whether the remaining eleven pages of the
transcripts may properly be sought in another federal lawsuit.