Johnson Newspaper Corp. v. Morton, 1328
| Decision Date | 29 November 1988 |
| Docket Number | No. 1328,D,1328 |
| Citation | 862 F.2d 25 |
| Parties | 15 Media L. Rep. 2314 JOHNSON NEWSPAPER CORPORATION d/b/a The Batavia News, Plaintiff-Appellee, v. The Hon. Glenn R. MORTON, Judge of the County Court of the County of Genesee, Defendant-Appellant. ocket 88-7283. |
| Court | U.S. Court of Appeals — Second Circuit |
O. Peter Sherwood, Sol. Gen., State of N.Y. , for defendant-appellant.
S. Paul Battaglia, Syracuse, N.Y. (Jonathan B. Fellows, Bond, Schoeneck & King, Syracuse, N.Y., of counsel), for plaintiff-appellee.
Before WINTER and MINER, Circuit Judges, BILLINGS, District Judge. *
Defendant-appellant The Hon. Glenn R. Morton ("Judge Morton"), Judge of the County Court of the County of Genesee, appeals from a summary judgment entered in the United States District Court for the Western District of New York (Elfvin, J.) declaring that his closure of a pre-trial suppression hearing was unconstitutional and allowing plaintiff to recover against him its reasonable costs and counsel fees. The action was commenced by plaintiff-appellee Johnson Newspaper Corporation d/b/a The Batavia Daily News ("Batavia News") following the issuance by Judge Morton of an order that prevented its news reporters from attending a suppression hearing in a criminal case pending in the Genesee County Court. Because we find that declaratory relief is inappropriate under the circumstances, we reverse and direct the entry of judgment in favor of Judge Morton.
This action had its genesis in proceedings in the County Court of Genesee County in a criminal action entitled "The People of the State of New York v. David R. Ferringer." Ferringer was indicted and arraigned on September 26, 1984 for the crimes of assault in the third degree, murder in the second degree (four counts), attempted robbery in the first degree, rape in the first degree, sexual abuse in the first degree, and criminal possession of stolen property in the third degree. There seems to be little doubt that the brutal rape/murder with which Ferringer was charged was a matter of intense public interest and concern in the small upstate New York community in which it occurred. Immediately following his arraignment, therefore, Ferringer applied to Judge Morton by order to show cause for a blanket closure of all evidentiary hearings and other proceedings preliminary to trial; for the sealing of any notices of intent to offer in evidence any statements made by him to the police; and for such other measures as might be necessary to protect him from the effects of prejudicial pre-trial publicity.
After hearing argument of Ferringer's application on September 28, 1984, Judge Morton denied blanket closure as premature and as unsupported by the required showing of necessity. The denial was without prejudice to a reapplication for the closure of specific hearings or proceedings to be scheduled in the future. Any notices of intention to offer statements to be filed by the district attorney were ordered sealed pending further direction of the court or expiration of the time allowed for motions to suppress. Decision was reserved on the balance of the issues presented. Present when Judge Morton orally announced these determinations on September 28 were the District Attorney of Genesee County, Ferringer's attorney, and an attorney representing Batavia News. All had participated in the oral argument.
Judge Morton filed a written decision on December 12, 1984 addressing the remainder of the relief sought in the application. He wrote that the issue to be resolved "concerns the protective measures, if any, this court should undertake to discharge its affirmative duty to minimize the possibility of prejudicial pre-trial publicity." Although Judge Morton found that "two regional papers have elected to disclose potentially prejudicial material," he also found that "coverage has subsided together with any expressions of public hostility or demonstrations." He concluded that no further measures to assure Ferringer a fair trial were then necessary, other than a direction that the New York State Police "not release or disclose without the approval of this court the performance or results of any test conducted herein or anticipated testimony of any prospective witness in respect thereto."
On January 25, 1985, Ferringer renewed his closure motion. At that time, after the District Attorney had served a notice of intent to offer statements in evidence and had responded to discovery requests, it appeared that a hearing would be scheduled on Ferringer's motion to suppress specific oral and written statements as well as an item of physical evidence. The closure motion was argued on January 29, 1985 by an assistant district attorney of Genesee County, by the attorney then representing Ferringer and by an attorney from the law firm representing Batavia News. Judge Morton issued his decision and order granting the closure motion on January 31, 1985. The action at bar was spawned by that determination.
In granting closure, Judge Morton found that Ferringer had made "the required showing" of "a strong likelihood that evidence relevant and admissible at the pre-trial hearing would prejudice his right to a fair trial if it were prematurely disclosed." Although Judge Morton recognized "that both the press and the public have some qualified right" to attend pre-trial proceedings in criminal cases, he opined that "the extent thereof or the showing of necessity to justify a closure has not been clearly defined." He rejected the suggestion of Batavia News that an expanded voir dire and a change of venue be considered as alternatives to closure, for the reason that "[n]o authority has been submitted which would reflect in any way that such is the remedy of choice ... where only a qualified right is involved." Judge Morton prohibited release of transcripts of the proceedings until "completion of the trial or such other time as the defendant is no longer in jeopardy."
The action at bar was commenced by the filing of a complaint on September 19, 1985, but it was not until October 2, 1985 that the last of the charges against Ferringer was disposed of by a negotiated plea. The criminal proceedings were concluded finally by the imposition of a sentence on October 21, 1985, at which time copies of the suppression hearing transcripts were made available to the public. In this action, brought pursuant to the provisions of 42 U.S.C. Sec. 1983 for violations of its rights under the first and fourteenth amendments, Batavia News sought judgment: (1) declaring the closure determination violative of the first amendment; (2) enjoining Judge Morton from enforcing the closure order and directing him to vacate the order; (3) directing Judge Morton to provide it with a complete transcript of the suppression hearing; and (4) requiring that in regard to any future closure of pre-trial proceedings, Judge Morton (a) "issue articulated findings" regarding the adequacy of closure alternatives, particularly change of trial venue, and (b) refrain from ordering closure unless it is shown to be the least restrictive remedy.
A motion by Judge Morton to dismiss the complaint was filed on December 20, 1985; a motion for summary judgment by Batavia News was filed on January 16, 1986; and oral argument on both motions was heard March 20, 1986. On March 4, 1988, approximately two years after the matters were taken under advisement, the district court filed its Memorandum and Order denying the motion to dismiss the complaint and granting summary judgment "declaring Judge Morton's action unconstitutional" and ordering "that the plaintiff may Judge Morton failed to articulate that specific--or any--alternatives to closure had been seriously considered and the reasons why those alternatives had been found wanting. Thus, to the extent that Judge Morton failed to articulate findings adequate to support closure, the decision to close the suppression hearing violated plaintiff's First Amendment rights. Such failure is declared.
recover from the defendant its necessary costs and a reasonable fee." The district court rejected Judge Morton's arguments urging eleventh amendment immunity, mootness, the abstention doctrine and failure to invoke available state remedies as grounds for dismissal. Finding that the dispute between the parties is "capable of repetition yet will likely evade review in the future," the court gave the following rationale for granting summary declaratory judgment to Batavia News
DISCUSSION
When Judge Morton issued the closure order in the Ferringer case on January 31, 1985, the public's first amendment right of access to suppression hearings was far from settled. The Supreme Court had applied a first amendment right of access to criminal trials, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), including jury selection, Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ("Press-Enterprise I "), but not to pre-trial proceedings. The following test for closure of a criminal trial was established in Press-Enterprise I:
The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.
464 U.S. at 510, 104 S.Ct. at 824.
In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the Supreme Court considered whether a defendant's sixth amendment right to an open trial...
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