30 Cal.3d 498, 24253, San Jose Mercury-News v. Municipal Court

Docket Nº:24253
Citation:30 Cal.3d 498, 179 Cal.Rptr. 772, 638 P.2d 655
Opinion Judge:[12] Newman
Party Name:San Jose Mercury-News v. Municipal Court
Attorney:[6] Edward P. Davis, Jr., Randolph M. Paul, and Rankin, Oneal, Center, Luckhardt, Marlais, Lund & Hinshaw for Petitioner. [7] Cooper, White & Cooper, Robert M. Raymer, Margaret H. Edwards, Pillsbury, Madison & Sutro, Jerome C. Dougherty, Walter R. Allan, Joseph R. Tiffany II, Gray, Cary, Ames & F...
Case Date:January 14, 1982
Court:Supreme Court of California

Page 498

30 Cal.3d 498

179 Cal.Rptr. 772, 638 P.2d 655




Alfredo GARZA et al., Real Parties in Interest.

S.F. 24253.

Supreme Court of California

Jan. 14, 1982.

In Bank

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[Copyrighted Material Omitted]

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Edward P. Davis, Jr., Randolph M. Paul, and Rankin, Oneal, Center, Luckhardt, Marlais, Lund & Hinshaw, San Jose, for petitioner.

Cooper, White & Cooper, Robert M. Raymer, Margaret H. Edwards, Pillsbury, Madison & Sutro, Jerome C. Dougherty, Walter R. Allan, Joseph R. Tiffany II, San Francisco, Gray, Cary, Ames & Frye, Josiah L. Neeper, Edward J. McIntyre, San Diego, Irell & Manella, Richard H. Borow, Harold E. Kruth, Kenneth A. Liebman, Lillick, McHose & Charles, Kenneth E. Kulzick, Lawrence W. Dam, Robert Fremlin, Gail M. Heckemeyer, San Francisco, Jack B. Purcell, Herbert M. Schoenberg, Jonathan Kotler, Los Angeles, Donald L. Zachary, Edwin A. Heafey, Jr., John E. Carne, Judith R. Epstein, Crosby, Heafey, Roach & May, Oakland, George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Herbert F. Wilkinson, Deputy Atty. Gen., Harold W. Fuson, Jr., and Rhonda Heth, Los Angeles, as amici curiae on behalf of petitioner.

No appearance for respondents.

Harry J. Delizonna, San Jose, for real parties in interest.

Wilbur F. Littlefield, Public Defender, Los Angeles, Dennis A. Fischer, James M. Hallett, Deputy Public Defenders, Quin Denvir, State Public Defender, and Richard S. Kessler, Deputy State Public Defender, as amici curiae on behalf of real parties in interest.

NEWMAN, Acting Chief Justice.

The San Jose Mercury-News sought mandate to compel respondent Otis, a judge of the Sunnyvale-Cupertino

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Municipal Court who presided over a preliminary hearing in a felony complaint (People v. Garza, et al., No. C80-25432), to vacate his order closing the hearing under Penal Code section 868 and to issue a new order opening the hearing to media and public. 1 The order is challenged on the ground that section 868, which requires a closed hearing at defendant's request, is an unconstitutional infringement on the public's right to attend. 2 We conclude that petitioner's arguments lack merit.

An indictment was filed in the municipal court against real parties in interest Garza, Hughes, Rogelio Sanchez, and Dolores Sanchez. Among other things it charged Garza, a member of the San Jose City Council, with taking bribes. Because of citizen interest, petitioner had reported the case extensively and was successful in opposing real parties' motion to seal the grand jury transcript. On October 30, 1980, petitioner assigned a reporter to cover the preliminary hearing; but before it began defendants obtained a closure order under section 868. The order was issued without any showing that real parties' rights would be prejudiced by an open hearing, and petitioner's representatives were excluded.

Petitioner and numerous amici argue that the federal and state Constitutions give the press and public a right of access to preliminary hearings that may be foreclosed only when outweighed by defendant's

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interest in a fair trial. Since section 868 permits no balancing of competing interests in individual cases, they urge, it contravenes the constitutional right.

A defendant's right to a fair criminal trial before an unbiased jury arises under the Fifth, Sixth and Fourteenth Amendments. (See Duncan v. Louisiana (1968) 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491; In re Oliver (1948) 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682; also parallel provisions of Cal.Const., art. I, §§ 7, subd. (a), 15.) This court has stressed section 868's importance in helping defendant protect himself against bias from prejudicial pretrial publicity. (People v. Elliot (1960) 54 Cal.2d 498, 504-505, 6 Cal.Rptr. 753.)

The countervailing "access theory" asserts that the public's right to receive and disseminate communications about public affairs implies at least some right to acquire relevant information at the source. It draws on the right to assemble in places and at proceedings traditionally public. It presumes the deterrent effect of public scrutiny on official misconduct. And it emphasizes the unique role of the media in vindicating the right to know. (Note, The Right of the Press to Gather Information (1971) 71 Colum.L.Rev. 838-845.) 3

The United States Supreme Court has identified limitations on the right of access. In Zemel v. Rusk (1965) 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 six justices rejected arguments that denial of privileges to travel to Cuba encroached on a citizen's First Amendment right to inform himself, ruling that "(t)he right to speak and publish does not carry with it the unrestrained right to gather information." (Pp. 16-17, 85 S.Ct. pp. 1280-81, italics added.) In Branzburg v. Hayes (1972) 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 a five-justice majority suggested that "without some protection for seeking out the news, freedom of the press would be eviscerated" (p. 681, 92 S.Ct. p. 2656). But the

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case held that a reporter has no "newsgathering privilege" to withhold the identity of confidential sources from a grand jury. Many incidental burdens on access to information, the court said, are proper. For example, the media enjoy no special right of access to places where public presence is properly restricted; they are "regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathered in executive session, and the meetings of private organizations" (p. 684, 92 S.Ct. p. 2658).

Later decisions, albeit again by slim margins, ruled that authorities need not grant special media access to prisons, which traditionally are closed to the public, at least so long as the public retains substantial alternative means of discovering information about penal conditions. (Houchins v. KQED, Inc. (1978) 438 U.S. 1, 10-16, 98 S.Ct. 2588, 2594-97, 57 L.Ed.2d 553; Saxbe v. Washington Post Co. (1974) 417 U.S. 843, 849-850, 94 S.Ct. 2811, 2814-15, 41 L.Ed.2d 514; Pell v. Procunier (1974) 417 U.S. 817, 834-835, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495.) In Houchins a four-member majority 4 reaffirmed that the First Amendment neither guarantees general public access to sources of information under government control nor accords the media access privileges beyond those of the public generally. (438 U.S. at pp. 11, 98 S.Ct. at 2594 (opn. of Burger, C. J.), 16, 98 S.Ct. 2597 (conc. opn. of Stewart, J.).)

Petitioner's and amici's arguments focus on two recent cases, Gannett Co. v. DePasquale, supra, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608, and Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973. Those cases demonstrate, they urge, that a majority of justices now have recognized constitutional rights of access to pretrial criminal proceedings such as the preliminary hearing here.

In Gannett, five members of the court in four opinions agreed that the Sixth Amendment guarantee of a public trial for the accused in criminal cases creates no public or media right of access to a pretrial suppression hearing. (443 U.S. pp. 385-386, 99 S.Ct. p. 2908 (opn. of Stewart, J.), 394, 99 S.Ct. 2912 (conc. opn. of Burger, C. J.), 397, 99 S.Ct. 2914 (conc. opn. of Powell, J.), 403, 99 S.Ct. 2917 (conc. opn. of Rehnquist, J.).) Addressing contentions that the Sixth Amendment embodies common law traditions of public attendance at trials, Justices Stewart and Stevens found no such tradition in

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the case of a pretrial proceeding. They concluded that the judge presiding over the suppression hearing at issue had respected any First Amendment rights that might exist by balancing free press-fair trial concerns under a "reasonable probability of prejudice" standard. (Pp. 392-393, 99 S.Ct. pp. 2911-12.)

The Chief Justice joined the Stewart opinion, articulating his own view that pretrial proceedings are not within the "open trial" purview of the Sixth Amendment. (Pp. 394-397, 99 S.Ct. pp. 2912-14.) Justice Rehnquist denied that the public has any constitutional right of attendance at court. (Pp. 403-406, 99 S.Ct. pp. 2917-19.)

Justice Powell alone expressly found a limited First Amendment access right to pretrial proceedings. That right, he said, had been satisfied in Gannett since access could be foreclosed on a showing that an open hearing was likely to prejudice defendant. He was careful to observe, moreover, that not all pretrial matters are so important for public scrutiny as is a suppression hearing, where "the question is whether critical, if not conclusive, evidence is to be admitted or excluded...." (P. 397, fn. 1, 99 S.Ct. p. 2914, fn. 1.)

Justice Blackmun, joined by Justices Brennan, Marshall, and White, dissented, arguing that the Sixth Amendment protects not only the accused's right against secret trial but also the important public interest in access to those critical, traditionally public, judicial proceedings "within the (Constitution's) ambit." (P. 433, 99 S.Ct. p. 2932.) A suppression hearing is such a proceeding, the dissenters noted, because even if held separately from the trial by choice it "resembles and relates to the full trial in almost every particular. Evidence is presented by means of live testimony, witnesses are sworn, and those witnesses are subject to cross-examination. Determination of the ultimate issue depends in most cases upon the trier of fact's evaluation of the evidence, and credibility is often crucial. Each side has incentive to prevail, with the result that the role of publicity as a testimonial...

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