1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

STEPHEN AMELKIN, Broadway

Chiropractic; DR. BRIAN

CHRISTOPHER FEE; STUARTLYON; NICOLAS BAKER;DAVID KAPLAN; JAMES W.

CHAMBERS; SIDNEY HANISH;

RHODA DANIELS; THOMAS H.WATSON; KENNETH W.

WALL; JAMES BOGARD, doing

business as Bogard &Associates,

Plaintiffs-Appellees,

CITY OF LOUISVILLE, Divisionof Police,

Plaintiff,

v.

ANN MCCLURE, Document

Custodian; GARY ROSE,Commissioner of Departmentof State Police; BENCHANDLER, Attorney General,

Defendants-Appellants,
2 Amelkin, et al. v. McClure, et al. No. 96-5942

JUSTICE CABINET, Department

of State Police,

Plaintiff/Counter DefendantAppellant,

JEFFERSON COUNTY,

KENTUCKY,

Defendant.



1

On Remand from the United States Supreme Court.

Nos. 94-00360, 95-00022, 95-00352—Charles M. Allen,

District Judge.

Argued: April 24, 1998 

Decided and Filed: February 24, 2000

Before: SUHRHEINRICH, SILER, and GILMAN, Circuit

Judges.

_________________

COUNSEL

ARGUED: William B. Pettus, OFFICE OF THEATTORNEY GENERAL, CIVIL & ENVIRONMENTALLAW DIVISION, Frankfort, Kentucky, Lucy B. Richardson,COMMONWEALTH OF KENTUCKY JUSTICECABINET, GENERAL COUNSEL, Frankfort, Kentucky, forAppellants. Donald L. Cox, LYNCH, COX, GILMAN &MAHAN, Louisville, Kentucky, for Appellees. ON BRIEF:

William B. Pettus, OFFICE OF THE ATTORNEYGENERAL, CIVIL & ENVIRONMENTAL LAWDIVISION, Frankfort, Kentucky, Lucy B. Richardson,COMMONWEALTH OF KENTUCKY JUSTICECABINET, GENERAL COUNSEL, Frankfort, Kentucky, forAppellants. Mary J. Lintner, LYNCH, COX, GILMAN &MAHAN, Louisville, Kentucky, for Appellees. Laurence J.
6 Amelkin, et al. v. McClure, et al. No. 96-5942

§ 189.635 and the California statute that the Supreme Courtconsidered in United Reporting. Because the district courtonly addressed the plaintiffs’ facial challenge, as indicated bythe fact that it permanently enjoined the state of Kentuckyfrom enforcing KRS § 189.635, see Amelkin v. McClure, 936F.Supp. 428 (W.D. Ky. 1996), we must reverse and remandthe case for the district court to consider the plaintiffs’ asapplied challenge. B. The Challenge to KRS § 61.874

The district court also enjoined the enforcement of KRS

§ 61.874, the statute that allows the state custodian ofnonexempt public documents to charge commercial users forproducing copies of police accident reports. It did so withoutmaking specific findings regarding the four factors that areused in determining whether a preliminary injunction shouldbe granted. See Washington v. Reno, 35 F.3d 1093, 1099 (6th

Cir. 1994). Without the benefit of such factual findings, it isimpossible for us to judge the validity of the plaintiffs’arguments. Accordingly, our prior opinion vacated andremanded the case back to the district court to make findingsof fact and conclusions of law as to how KRS § 61.874 hasbeen applied by the state agency. See Amelkin, 168 F.3d at

901-02. This portion of our prior opinion was not modifiedby United Reporting, and continues to be the ruling of thiscourt.

III. CONCLUSION

For the reasons set forth above, the district court’s decision

regarding KRS § 189.635 is REVERSED and REMANDED

for consideration of the plaintiffs’ as-applied challenge, andits decision regarding KRS § 61.874 is VACATED andREMANDED, all for further proceedings consistent with thisopinion.

No. 96-5942 Amelkin, et Zielke, PEDLEY, ZIELKE, GORDLouisville, Kentucky, for Amicus 

____________

OPINION

____________

RONALD LEE GILMAN, 

December 13, 1999, the Supreme C17, 1999 decision in the above-styMcClure, 168 F.3d 893 (6th Cir. case for further consideration in liDep’t v. United Reporting PublishiS.Ct. 483 (1999). After taking inholding in United Reporting, we court’s decision to enjoin the eRevised Statute § 189.635(5)-(6), plaintiffs’ “facial challenge” to thto police accident reports. We furth

consideration of the plaintiffs’ “asstatute. The remainder of our prior by the Supreme Court’s action and of this court. 

I. FACTUAL SU

A number of attorneys and chi

proposed publisher of a commercThe Accidental Journal, filed suit tstatutes, one restricting access to pthe other allowing the state custodocuments to charge commercial uproducing copies of the repopermanently enjoined the enforfinding that they violated the plaright to freedom of expression. Odistrict court’s injunction rega(restricting access to police accidenremanded its decision regarding KR
4 Amelkin, et al. v. McClure, et al. No. 96-5942

to be charged to commercial users for copies of the reports).See Amelkin, 168 F.3d at 901-02. 

II. ANALYSIS

A. The Facial Challenge to KRS § 189.635

The first issue that must be addressed is whether the

plaintiffs can bring a facial challenge to KRS § 189.635, thestatute that regulates access to police accident reports inKentucky, in light of the Supreme Court’s recent decision inUnited Reporting. In United Reporting, a private publishing

company in California had been providing the names andaddresses of recently arrested individuals to its customers,who included attorneys, insurance companies, drug andalcohol counselors, and driving schools. It received thenames and addresses from local law enforcement agenciesuntil the state of California amended Cal. Gov’t Code§ 6254(f)(3) to require that a person requesting an arrestee’sname and address declare that the request is being made forone of five prescribed purposes, and that the name andaddress will not be used directly or indirectly to sell a productor service. United Reporting sought declaratory andinjunctive relief, and requested that the amended section bedeclared unconstitutional under the First and FourteenthAmendments.

The district court construed United Reporting’s claim as a

facial challenge to § 6254(f)(3), granted United Reporting’smotion for summary judgment, and enjoined the enforcementof the statute. Upon appeal, the Ninth Circuit affirmed thedistrict court’s judgment, concluding that the statute wasfacially invalid. The Supreme Court, however, reversed theNinth Circuit, and held that § 6254(f)(3) did not warrant thedrastic measure of declaring facial invalidity. See United

Reporting, 120 S.Ct. at 489. 

An overbreadth facial attack is made when a challenger

argues that an otherwise valid law might be appliedunconstitutionally in a specific context. See generally UnitedReporting, 120 S.Ct. at 488-89. If a facial challenge is

No. 96-5942 Amelkin, et upheld, then the state cannot enanyone. See Board of Trustees v(1989) (“Where an overbreadth statute is obviously invalid in all every person to whom it is applied the same overbreadth.”). On the ochallenge consists of a challenge tonly to the party before the courLakewood v. Plain Dealer Publishi59 (1988) (noting that as-applied ca case-by-case basis). If it is succbe applied to the challenger, but is 

Overbreadth facial challenges are 

“a person to whom a statute may cmay not challenge that statute oconceivably be applied unconssituations not before the Court.” U.S. 747, 767 (1982). As explaineUnited States v. Salerno, 481 U.S. 7challenge to a legislative Act is, of challenge to mount successfully, establish that no set of circumstanAct would be valid.”

One of the few exceptions to the 

challenges is if a statute proscriviolators with prosecution. See Go518, 520-21 (1972). In United Repheld that a facial challenge wa§ 6254(f)(3) neither imposed a threnor “chilled” expressive speech—to government information. Id. at 

Based on the reasoning set out i

§ 189.635 is similarly not subjbecause it does not carry the tviolating the statute and it does not but simply regulates access to the sthis regard we find no material d