Midland Pub. Co., Inc., In re

• Decision Date: 31 March 1982
• Docket Number: Docket No. 53934
• Citation: 113 Mich.App. 55,317 N.W.2d 284
• Parties: , 8 Media L. Rep. 1584 In re MIDLAND PUBLISHING COMPANY, INC., a Delaware corporation. MIDLAND PUBLISHING COMPANY, INC., a Delaware corporation, Plaintiff-Appellant, v. DISTRICT COURT JUDGE (The Honorable Henry HART, District Judge, 75th Judicial District), Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 284

317 N.W.2d 284

113 Mich.App. 55, 8 Media L. Rep. 1584

In re MIDLAND PUBLISHING COMPANY, INC., a Delaware corporation.

MIDLAND PUBLISHING COMPANY, INC., a Delaware corporation, Plaintiff-Appellant, v. DISTRICT COURT JUDGE (The Honorable Henry HART, District

Judge, 75th Judicial District), Defendant-Appellee.

Docket No. 53934.

Court of Appeals of Michigan.

Submitted March 13, 1981.

Decided Feb. 2, 1982.

Released for Publication March 31, 1982.

Herbert H. Edwards, Midland, for Midland Pub. Co., Inc.

Doyle A. Rowland, Midland, for District Court Judge.

Keywell & Rosenfeld by Dawn L. Phillips and Debi D. Kirsch, Troy, amicus curiae, for Michigan Press Ass'n.

Before BEASLEY, P. J., and BASHARA and MacKENZIE, JJ.

MacKENZIE, Judge.

This case presents questions concerning the constitutionality of M.C.L. Sec. 750.520k; M.S.A. Sec. 28.788(11), which provides:

"Upon the request of the counsel or the victim or actor in a prosecution under sections 520b to 520g the magistrate before whom any person is brought on a charge of having committed an offense under sections 520b to 520g shall order that the names of the victim and actor and details of the alleged offense be suppressed until such time as the actor is arraigned on the information, the charge is dismissed, or the case is otherwise concluded, whichever occurs first".

Sections 520b to 520g are M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2) to M.C.L. Sec. 750.520g; M.S.A. Sec. 28.788(7), which cover various aspects of criminal sexual conduct.

Plaintiff publishes the only daily newspaper in Midland County, Michigan, the Midland Daily News. Plaintiff brought this action to obtain an order of superintending control vacating suppression orders entered by a judge of the 75th District Court in certain criminal sexual conduct cases. Plaintiff's complaint alleged that it knew the identity of the defendant in two pending cases and some of the details of the alleged offenses. Plaintiff contended that the suppression orders were unconstitutional as prior restraints on publication and as violative of plaintiff's right of access to criminal trials and to public records. Plaintiff was denied an order of superintending control and appeals by right.

I

Freedom of speech and of the press are guaranteed by federal and state constitutional provisions. U.S.Const., Ams. I, XIV; Const. 1963, art. 1, Sec. 5. As prior restraints on publication are the most serious and least tolerable infringement of First Amendment rights, the party seeking to justify a prior restraint must overcome a heavy presumption of unconstitutionality. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).

In WXYZ, Inc. v. Hand, 463 F.Supp. 1070 (ED Mich., 1979), the federal court held that orders issued pursuant to the statute at issue here were void as prior restraints. However, in that case the defendant district judge announced that his suppression orders applied to news media personnel as well as to others, and would have taken steps to determine if the news commentators involved were in contempt of court if the federal action had not intervened. To the contrary, in the instant case, the circuit judge held:

"If section 520k were construed as the publisher fears, it would certainly constitute a prior restraint upon a publication and would, in this court's opinion, be clearly in violation of the First Amendment rights of the complainant. An examination of the statute, however, discloses no express authorization to the 'magistrate before whom any person is brought' to enforce the suppression order authorized by the section against persons not party to the proceedings, nor served with a copy of the order.

"The suppression of names and details concerning pending litigation is not new to the jurisprudence of the State of Michigan. Whether the practice is commendable or not, it has existed since long prior to this century. See Jan Schmedding v. County Clerk of Wayne County, 85 Mich. 1 (1891). A suppression order, as the term is commonly understood in the State of Michigan, contemplates only a direction to the court personnel to prevent public disclosure of the official files. The terms of the statute make it clear that the statutory suppression order would also require the closing of the preliminary examination to the public and the press, since the first event upon which the termination of this suppression order is conditioned is the arraignment on the information, unless the case is concluded without bind-over to the circuit court.

"So construed, the statute does not constitute a restraint against publication, since it contemplates no sanctions against non-parties publishing information, no matter how acquired. It is a fundamental rule of statutory interpretation that where two constructions are possible, one constitutional and one unconstitutional, the constitutional construction should be adopted. The judges of the 75th Judicial District have, through their attorney, claimed no power to gag or discipline the press, and have, in fact, acknowledged that the statute confers no such power upon them".

We agree with the circuit judge's construction of the statute. So construed, the statute poses no prior restraint problem. See Gannett Co. v. DePasquale, 443 U.S. 368, 393 fn. 25, 99 S.Ct. 2898, 2912 Fn. 25, 61 L.Ed.2d 608 (1979):

"This Court's decision in Nebraska Press Assn. v. Stuart, 427 U.S. 539 [96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) ], is of no assistance to the petitioners in this case. The Nebraska Press case involved a direct prior restraint imposed by a trial judge on the members of the press, prohibiting them from disseminating information about a criminal trial. Since 'it has been generally, if not universally, considered that it is the chief purpose of the [First Amendment's] guaranty to prevent previous restraints upon publication,' Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713 [51 S.Ct. 625, 630; 75 L.Ed. 1357 (1931) ], the Court held that the order violated the constitutional guarantee of a free press. See also Oklahoma Publishing Co. v. District Court, 430 U.S. 308 [97 S.Ct. 1045, 51 L.Ed.2d 355 (1977). The exclusion order in the present case, by contrast, did not prevent the petitioner from publishing any information in its possession. The proper inquiry, therefore is whether the petitioner was denied any constitutional right of access".

II

The existence of a constitutional right of access to trials was considered by the United States Supreme Court in Gannett and in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Gannett involved a pretrial hearing on a motion to suppress certain evidence; however, much of the reasoning in the majority opinion by Justice Stewart was based on considerations applicable to trials. The Court held that members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials, even though open trials were the norm under common law. The Court noted in passing that the public had no right to attend pretrial proceedings under common law. The Court declined to decide whether the First and Fourteenth Amendments created a constitutional right to attend trials. Instead, the Court held that, assuming arguendo that such a right existed, it was not violated where denial of access was not absolute but temporary, members of the public were given an opportunity to object to closure of the proceedings, and the trial court concluded that the potential prejudice to defendant's constitutional right to a fair trial outweighed the right of access to the proceedings.

Four justices dissented in Gannett in an opinion written by Justice Blackmun. The dissenters inferred from the unbroken common law tradition of public trials in criminal cases that the Sixth Amendment was intended to create a public right to attend trials. The dissenters recognized that pretrial proceedings were not open to the public at common law, but concluded that the pretrial suppression hearing involved in Gannett should not have been closed since under common law pretrial suppression hearings were unknown and objections to the admission of evidence were made at trial.

In Detroit Free Press v. Recorder's Court Judge, 409 Mich. 364, 388, 294 N.W.2d 827 (1980), the Court considered some of the same questions involved in Gannett. The Court concluded that the Sixth Amendment and art. 1, Sec. 20 of the Michigan Constitution created a public right of access to trials. However, Gannett was expressly distinguished as involving a pretrial proceeding. Moreover, the Court relied upon the same type of historical analysis conducted by the dissenters in Gannett, which, as has been seen, does not support a public right of access to pretrial proceedings not open to the public at common law. In view of the foregoing, it does not appear that the Sixth Amendment or the equivalent state constitutional provision require public access to a preliminary examination.

In Richmond, the Court considered whether the First and Fourteenth Amendments created a constitutional right of access to trials, a question it had expressly refrained from deciding in Gannett. Richmond involved the exclusion of all members of the public from a criminal trial. No opinion in Richmond commanded a majority of the Court, but seven of the eight justices participating found that the First and Fourteenth Amendments created a constitutional right of access to criminal trials. However, the opinion of Chief Justice Burger, joined by Justices White and Stevens, stated that the First Amendment guarantees of freedom of speech and of the press protected a right of access to places traditionally open to the public, such as trials. The opinion of Justice Brennan, joined by Justice Marshall, emphasized the necessity of consulting historical practice...