Ashland Pub. Co. v. Asbury

• Court: Kentucky Court of Appeals
• Writing for the Court: WILHOIT; This is an original action brought by the Ashland Publishing Company and the Huntington Publishing Company against the Honorable Kelley Asbury; COOPER; LESTER; LESTER
• Citation: Ashland Pub. Co. v. Asbury, 612 S.W.2d 749 (Ky. Ct. App. 1980)
• Decision Date: 14 November 1980
• Docket Number: No. 80-CA-1171-OA,80-CA-1171-OA
• Parties: ASHLAND PUBLISHING COMPANY and Huntington Publishing Company, Petitioners, v. Honorable Kelley ASBURY, Judge, Boyd Circuit Court, Division I, Respondent, and Roger Dean Gardner, Intervenor.

Page 749

612 S.W.2d 749

ASHLAND PUBLISHING COMPANY and Huntington Publishing Company, Petitioners, v. Honorable Kelley ASBURY, Judge, Boyd Circuit Court, Division I, Respondent and Roger Dean Gardner, Intervenor.

No. 80-CA-1171-OA

Court of Appeals of Kentucky.

Nov. 14, 1980.

John F. Billings, Vigor & Vigor, Paul C. Hobbs, Ashland, for petitioners.

William M. Mizell, Jr., Public Defender, Catlettsburg, Jack E. Farley, Public Defender, M. Gail Robinson, Kevin Michael McNally, Asst. Public Defenders, Frankfort, for respondent and intervenor.

Michael L. Judy, Gen. Counsel, Johnson, Judy & Gaines, Frankfort, for amicus curiae Kentucky Press Association.

Before COOPER, LESTER and WILHOIT, JJ.

OPINION AND ORDER GRANTING PROHIBITION

WILHOIT, Judge.

This is an original action brought by the Ashland Publishing Company and the Huntington Publishing Company against the Honorable Kelley Asbury, Judge of the Boyd Circuit Court, in which the petitioners seek an order prohibiting Judge Asbury from closing the pretrial proceedings in a murder case. The petitioners allege that they are the publishers of the two major newspapers serving the Boyd County area and that they are therefore directly affected by the closure order. The defendant in the murder case was permitted to intervene in this action and the Kentucky Press Association to file an amicus curiae brief.

In the pending murder case, Roger Dean Gardner has been indicted for the murder of Georgia Lynn Oliver. Apparently, Mr. Gardner is a black man, while Miss Oliver was a white woman. This is alleged by the respondent in his pleadings to this Court, although these facts do not appear in any of the newspaper reports before us. The newspapers reported on May 10, 1980, that police had found Miss Oliver, 22, and that she had been stabbed to death in her apartment the previous evening. Mr. Gardner, 24, of the same address, was found lying unconscious nearby with multiple wrist and leg lacerations. The incident was described as an "apparent murder and attempted suicide." On May 12, 1980, it was reported that there had as yet been no arrests in the case, but a police sergeant's statement was quoted that "(w)e think we know what happened but we're trying to find the evidence to back it up." On May 15, 1980, it was reported that Mr. Gardner had been arrested for the murder of Miss Oliver. A newspaper report of May 20, 1980, told that Gardner, "accused of murder in the stabbing death of a former Boyd County High School cheerleader" had entered a plea of not guilty, and that Gardner was being held without bond. On May 23, 1980, a newspaper reported that Mr. Gardner's bond had been set at $100,000.00. On May 28, 1980, an article appeared describing the circumstances of the finding of Miss Oliver's body, simply stating that she had been found stabbed to death in her apartment and that Gardner was found lying unconscious nearby with multiple wrist and leg lacerations. The article also reported that defense counsel had moved to exclude the press, public and other media from pretrial hearings. On May 30, 1980, a news report described the opposition by the press to the motion to exclude it from the hearing on the bond reduction motion and quoted remarks of both the Assistant Commonwealth's Attorney and defense counsel made at the closure hearing. The petitioners refused to be bound by either the 1978 ABA Criminal Justice Standards or the 1965 Fair Trial Reporting Code adopted by the Kentucky associations of the bar, the news media, and the bench with respect to delaying the dissemination of certain pretrial information until after the jury was empaneled.

On June 10, 1980, the court entered its order adjudging

that the public, press and electronic media be excluded from all pre-trial hearings involving evidentiary matters presented by only one side and from all pre-trial suppression of evidence hearings. Release of such transcripts may be made after a jury is empanelled and sequestered or after the trial.

The court found that there was a substantial probability or irreparable damage to the defendant's fair trial right by conducting these pretrial proceedings in public, that a closure order would effectively protect against irreparable damage, and that the right to a fair trial could not be protected by any less restrictive alternatives.

The first question which must be disposed of is whether an application for relief in the nature of prohibition is appropriate. We believe that it is. See Lexington Herald Leader Co. v. Tackett, Ky., 601 S.W.2d 905 (1980).

We are next presented with the question, which is the heart of this proceeding, whether the order closing all pretrial hearings involving evidentiary matters presented by only one side and from all pretrial suppression hearings violates the First Amendment to the United States Constitution and Sections 8, 11, and 14 of the Kentucky Constitution.

In Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the United States Supreme Court held that the Sixth Amendment to the United States Constitution guaranteeing an accused the right to a public trial gave neither the public nor the press an affirmative right of access to a pretrial suppression hearing in a state criminal case. The Court declined to rule on the question of whether the First Amendment gave such a right although that question was specifically raised. The majority opinion did note, however, that the right of access under the First Amendment was acknowledged by the state trial judge who held that this right was outweighed in that case by the defendant's right to a fair trial. The Court appeared to find no fault in the result reached by the trial judge's "assessment of the competing societal interests involved." Id. at 393, 99 S.Ct. at 2912, 61 L.Ed.2d at 629.

In Richmond Newspapers, Inc. v. Virginia, --- U.S. ----, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Supreme Court held that the First Amendment as applied to the states by the Fourteenth Amendment guarantees the right of both the public and press to attend criminal trials. Looking to the First Amendment from an historical perspective, a majority of the Court seemed to agree with the Chief Justice that "(t)he right of access to places traditionally open to the public, as criminal trials have long been, may be seen as assured by the amalgam of the First Amendment guarantees of speech and press(.)" Id. at ----, 100 S.Ct. at 2828, 65 L.Ed.2d at 989-90. A majority of the Court also recognized that this right of access is not absolute and that it can be subject to some overriding interest.

As can be seen, neither of these cases specifically answers the First Amendment question before us. They tell us that the press and public have no Sixth Amendment right to attend criminal pretrial hearings but they do have a First Amendment right to attend criminal trials. So we shall turn to our own Constitution.

Section 8 of the Kentucky Constitution provides that "(p)rinting presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof." Section 11 provides that "(i)n all criminal prosecutions the accused ... shall have a speedy public trial by an impartial jury of the vicinage(,)" and Section 14 that "(a)ll Courts shall be open ...."

These sections of our Constitution when viewed in the context of their history and of the history and traditions of our people can only be taken as an expression of the principle that justice cannot survive behind walls of silence and of an intent and spirit that there be a "presumption of openness" to criminal proceedings in the courts. ¹ This precept that courts shall be open embodies not only the idea that the courts shall be available to all citizens who seek redress for wrongs but that the courts shall be "public, open, no hiding place about them(.)" 1 Official Report of the Proceedings and Debates of the 1890 Constitutional Convention 500 (1890).

Over one hundred years ago, the highest court of this State, interpreting a section of the 1850 Constitution identical to Section 14 of our present Constitution, stated that the courts "are to be held in an open and public manner, and their proceedings are not to be secret or concealed from public view." Johnson v. Higgins, 60 Ky. 566, 570, 3 Met. 514, 518 (1862). More recently, that Court although not mentioning specifically any section of our Constitution, but certainly expressing its spirit, wrote:

It is insisted by some the right to public trial is solely for the benefit of the criminal defendant and if he has no objection to a closed trial then the public should not be permitted to object. This contention overlooks the fact that the public is a party to all criminal proceedings. The proceeding is prosecuted in the name of the the public. In our opinion there is nothing that better protects the rights of the public than their presence in proceedings where these rights are on trial.

Johnson v. Simpson, Ky., 433 S.W.2d 644, 646 (1968) (emphasis added). This language was cited with approval in Lexington Herald Leader Co. v. Tackett, supra.

The same policy which calls for openness in criminal trials also calls for openness in pretrial proceedings. Nevertheless, the right of the public and press to be present at criminal proceedings, even trials, is not absolute. Just as modern notions of what is embodied in the constitutional safeguard of a free press are much broader than what once was thought to suffice, so too have notions of what is embodied in the safeguard of a fair trial expanded. Still, these two safeguards collide only when an extremist view is taken of either. Such views are foreign to the spirit of both the federal and state Bills of Rights and their "admonitions of moderation." L. Hand, A Plea for the Open Mind and Free Discussion, in The Spirit of Liberty, 274, 278 (2d...