Los Angeles Times v. Superior Court

• Decision Date: 12 December 2003
• Docket Number: No. B169890.,B169890.
• Citation: 114 Cal.App.4th 247,7 Cal.Rptr.3d 524
• Court: California Court of Appeals Court of Appeals
• Parties: LOS ANGELES TIMES et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People et al., Real Parties in Interest.

7 Cal.Rptr.3d 524

114 Cal.App.4th 247

LOS ANGELES TIMES et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent;

The People et al., Real Parties in Interest.

No. B169890.

Court of Appeal, Second District, Division 3.

December 12, 2003.

Review Denied February 24, 2004.

ORIGINAL PROCEEDINGS in mandate. Dan T. Oki, Judge, David S. Wesley, Judge, and^* Thomas F. Nuss, Judge. Petition denied.

Davis Wright Tremaine, Kelli L. Sager, Alonzo Wickers and Susan E. Seager, Los Angeles, for Petitioners.

Frederick R. Bennett, Los Angeles, for Respondent.

Brentford J. Ferreira, District Attorney, for Real Party in Interest the People.

Guzin & Steier and Donald H. Steier, Los Angeles, for Real Party in Interest Michael Baker, George Rucker, George Miller.

Daniel A. Guerrero, Pasadena, for Real Party in Interest John Salazar.

Hennigan, Bennett & Dorman, J. Michael Hennigan, Los Angeles, Donald F. Woods and Jeffrey S. Koenig for Real Party in Interest Archdiocese.

KLEIN, P.J.

"The right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness." (Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 7, 106 S.Ct. 2735, 92 L.Ed. 2d 1 (Press-Enterprise II).) "Underlying the First Amendment right of access to criminal trials is the common understanding that `a major purpose of that Amendment was to protect the free discussion of governmental affairs,' ... [and] to ensure that this constitutionally protected `discussion of governmental affairs' is an informed one." (Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 604-605, 102 S.Ct. 2613, 73 L.Ed.2d 248.) In California, this right of access is protected by Code of Civil Procedure section 124, which provides that "the sittings of every court shall be public." (See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1216, 86 Cal.Rptr.2d 778, 980 P.2d 337 [First Amendment cases "inform our interpretation of [Code Civ. Proc., § 124]"].)

On the other hand, it has been "consistently ... recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." (Douglas Oil Co. v. Petrol Stops Northwest (1979) 441 U.S. 211, 218-219, 99 S.Ct. 1667, 60 L.Ed.2d 156; see also McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1175, 245 Cal.Rptr. 774, 751 P.2d 1329 ["The importance of secrecy is well established in the context of the grand jury's criminal indictment function."].)

The instant petition for writ of mandate, filed by the Los Angeles Times and the Los Angeles Daily Journal, raises an issue of first impression: whether the general California rule of grand jury secrecy applies to ancillary proceedings such as the motions to quash grand jury subpoenas being litigated here.

After careful research and consideration, we conclude the motion to quash hearings, and the documents filed in connection therewith, should be closed and sealed to the extent necessary to prevent disclosure of matters occurring before the grand jury. Accordingly, we will grant the writ petition in part and deny it in part, and remand this matter to the superior court for further proceedings.

BACKGROUND

1. The underlying grand jury proceeding.

The writ petition arises out of a grand jury investigation into allegations that certain Roman Catholic priests, employed by the Archdiocese of Los Angeles, committed acts of child molestation. As we noted in our previous opinion in this on-going matter, "On June 12, 2002, the Los Angeles County District Attorney served grand jury subpoenas on the archdiocese's custodian of records, seeking all documents in the archdiocese's possession or control — including `confidential personnel files' — that `relate in any way to allegations of child molestation or sexual abuse' by any of the petitioners [three Roman Catholic priests]. The archdiocese produced the requested documents, which the trial court sealed¹ because the [priests] immediately moved to quash the subpoenas." (M.B. v. Superior Court (2002) 103 Cal.App.4th 1384, 1386, 127 Cal.Rptr.2d 454, fn. omitted.)

When the superior court ruled the subpoenas were not facially defective for failing to meet the affidavit requirements set forth in Code of Civil Procedure section 1985, subdivision (b) (affidavit shall be served with subpoena duces tecum showing good cause and materiality) and 1987.5 (service of subpoena duces tecum is invalid without affidavit), several of the priests filed a petition for writ of mandate in this court. That writ petition argued the subpoenas should be quashed because the grand jury had no authority to issue subpoenas duces tecum and, even if it did, the subpoenas were facially defective. The substantive evidentiary privilege claims being asserted against the subpoena demands were held in abeyance pending our resolution of the writ petition.

On December 2, 2002, in response to that writ petition, this court issued M.B. v Superior Court, supra, in which we held that "California criminal grand juries have the power to issue subpoenas duces tecum, and ... such subpoenas do not require good cause affidavits." (M.B. v. Superior Court, supra, 103 Cal.App.4th at p. 1386, 127 Cal.Rptr.2d 454.)

2. Appointment of discovery referee.

After our opinion was filed, the People, the individual priests and the Archdiocese stipulated to the appointment of Judge (Retired) Thomas Nuss (the referee) to resolve the substantive issues raised by the motions to quash. According to the referee, he had been appointed "to hear and determine any and all of the issues with regard to the [subpoenas duces tecum], whether of fact or of law, and to report a statement of decision in writing" to the superior court.

On April 1, 2003, the referee held a hearing on the motions to quash, during which counsel argued the general legal principles they felt applied to the various evidentiary privileges being asserted against the demands made in the subpoenas duces tecum. Almost the entire hearing was conducted in open court; out of a 135-page transcript, only 16 pages were filed under seal. However, the referee subsequently decided it had been a mistake to hold a public hearing. On August 27, 2003, he issued an "Order Denying Public Access To Pleadings and Decision Related to Grand Jury Subpoenas" which directed that all future pleadings, orders and hearings involved in litigating the motions to quash would be closed and sealed. On September 11, 2003, the Los Angeles Times and the Los Angeles Daily Journal filed the instant writ petition, seeking to overturn the referee's closure order.

ISSUES RAISED

1. Petitioners, asserting there is "enormous public interest" in this case, ask us to vacate the referee's August 27 sealing order on the ground it violates their presumptive right of public access to judicial proceedings.

Petitioners also contend there is no legal justification for keeping under seal the superior court order appointing Judge Nuss to act as the discovery referee.

2. Real Party in Interest District Attorney of Los Angeles contends there is no presumptive right of public access to grand jury proceedings. However, the District Attorney also contends "the privilege litigation concerning the motion to quash the grand jury subpoenas in this case is merely ancillary to the grand jury proceeding itself. Since there is intense public interest in the subject of the grand jury proceedings and the litigation of the motions to quash the subpoenas does not require disclosure of grand jury materials, there is no countervailing reason to maintain secrecy for these proceedings." (Italics added.)

3. Real Parties in Interest the Priests² and the Archdiocese³ contend the writ petition must be dismissed as procedurally defective on the ground petitioners never made a formal motion in the superior court seeking to reverse the referee's sealing order.

As to the substantive issues, these real parties in interest agree with the District Attorney that there is no presumptive right of public access to grand jury proceedings. But, contrary to the District Attorney's position, they contend the general rule of grand jury secrecy justifies the referee's blanket order sealing these ancillary grand jury proceedings.

DISCUSSION

1. The writ petition is not procedurally barred.

Real parties in interest the Archdiocese and the Priests ask us to dismiss the writ petition as premature because petitioners allegedly did not first exhaust all available remedies in the superior court. (See Phelan v. Superior Court (1950) 35 Cal.2d 363, 366, 217 P.2d 951 ["Although [Code Civ. Proc., § 1086] does not expressly forbid the issuance of the writ if another adequate remedy exists, it has long been established as a general rule that the writ will not be issued if another such remedy was available to the petitioner."].) The Archdiocese acknowledges petitioners did request access to the proceedings by informal letter, but the Archdiocese contends the writ petition must be dismissed because petitioners never filed a formal motion in the superior court asking to have the referee's sealing order reversed. This claim is meritless.

One of petitioners' informal letters was quite extensive, citing and discussing the same California and United States Supreme Court cases petitioners rely on in the writ petition itself. Moreover, the referee treated petitioners' informal requests as actual motions, saying: "Although a formal motion has not been filed, the referee is aware that the media have sought access to the pleadings and orders related to these proceedings," and "The referee ... is aware that the media have sought access to the pleadings and orders related to these proceedings. The court treats those efforts as a request to hold public hearings and to permit public inspection of the pleadings and the referee's decision. In ruling on that motion, the court denies the requests for the...