Com. v. Long

• Decision Date: 31 May 2007
• Docket Number: No. 40 WAP 2005.,No. 39 WAP 2005.,39 WAP 2005.,40 WAP 2005.
• Citation: 922 A.2d 892
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania, v. Karl LONG. Appeal of Tribune-Review Publishing Company.

922 A.2d 892

COMMONWEALTH of Pennsylvania, v. Karl LONG Appeal of Tribune-Review Publishing Company.

No. 39 WAP 2005.

No. 40 WAP 2005.

Supreme Court of Pennsylvania.

Argued May 9, 2006.

Decided May 31, 2007.

David Alan Strassburger, Ronald D. Barber, H. Yale Gutnick, Strassburger, McKenna, Gutnick & Potter, P.C., Pittsburgh, for Tribune-Review Pub. Co.

Howard M. Holmes, Mary Elizabeth Butler, Admin. Office of PA Courts, John W. Peck, II, Westmoreland County Dist. Attorney's Office, for the Com. of PA.

Walter P. DeForest, III, DeForest Koscelnik Yokitis & Kaplan, Altoona, for WPXI, Inc.

Frederick A. Polner, for appellant amicus curiae, Pennsylvania Ass'n of Broad-casters.

BEFORE: CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.

OPINION

Chief Justice CAPPY.

In this appeal, we are asked to consider whether the press has a common law or constitutional right of access to the names and addresses of the jury panel in a criminal trial. The Superior Court held that the constitutional right of access was satisfied when the press attended the proceedings and did not separately guarantee the press access to the jurors' names and addresses. For the reasons detailed herein, we disagree with the Superior Court's conclusions. Accordingly, the Order of the court is reversed.

The instant dispute arose out of the prosecution of Karl Long for the murder of his wife. The trial court conducted jury selection from July 28 through July 30, 2003. The jury selection process was open to the public and at least one reporter of WPXI, Inc., a TV station, and the Tribune-Review Publishing Company, a local newspaper, (hereafter "Appellants") was present in the courtroom. During jury selection, the potential jurors were referred to only by number. At no time during jury selection did Appellants raise an objection to the process the court employed.

The trial proceeded from August 4 through August 20, 2003. During this time, the trial court learned that two of Appellants' reporters were attempting to secure the names and addresses of the impaneled jury through members of the court's judicial staff. N.T., 8/15/2003, 1962-63. The reporters, however, did not file a request for this information at this time.

On August 15, 2003, near the close of trial and on its own initiative, the trial court raised concerns about events having the potential to jeopardize the jury's performance of its duties. N.T., 8/15/2003, 1956-1964. Specifically, the court was concerned with incidents involving the victim's family "staring at people, standing near automobiles, um, or jurors." N.T., 8/15/2003, at 1957. The court also raised concerns about the requests for the jurors' names and addresses by the press. N.T., 8/15/2003, at 1962-63. The court tentatively arranged to sequester the jury because of its concerns for "protecting the jury as much as I can. And that includes not revealing their names and addresses." N.T., 8/15/2003, at 1963. Ultimately, however, the court did not sequester the jury, but made alternative arrangements.

On August 20, 2003, while the jury was still deliberating, Appellants requested a hearing on the question of their right to the jurors' names and addresses. N.T., 8/20/2003. They filed Motions to Intervene to this effect the next day and a hearing on the matter was scheduled for September 2, 2003.¹ During the hearing, Appellants asserted that they needed the jurors' names and addresses in order to verify the identity of the jurors.² Such information was required "for the public to be able to know who is on that jury and how they have been selected." See N.T., 9/2/2003, at 7, 17. Following the hearing, the court granted Appellants standing on September 17, 2003. The trial court held a second hearing in November of 2003 and ultimately denied Appellants' petitions on December 31, 2003.

The trial court reasoned that the jurors' names and addresses could not be disclosed under Rule 632 of the Pennsylvania Rules of Criminal Procedure and the concomitant Administrative Order of the Westmoreland County Court of Common Pleas. Rule 632 provides that Juror Questionnaires shall not constitute a public record and the related administrative order provided for the destruction of Juror Questionnaires at the conclusion of the proceedings.³ The trial court explained that the names and addresses were part of the Juror Questionnaire and the confidentiality provisions protect all of the information on those forms, including the jurors' names and addresses. The court also concluded that "[Appellants] have not presented the Court with any controlling authority demonstrating that these procedures are unconstitutional." Commonwealth v. Long, 86 Westmoreland Law J. 89, 95 (2003).

Appellants appealed to the Superior Court challenging the trial court's refusal to release the jurors' names and addresses as violative of the common law right of access and of the constitutional right of access to criminal trials guaranteed by the First Amendment of the United States Constitution and Article 1, Section 11 of the Pennsylvania Constitution. U.S. CONST. amend. 1; PA. CONST. art. 1, § 11.⁴,⁵

The Superior Court affirmed the trial court's decision. Commonwealth v. Long, 871 A.2d 1262 (Pa.Super.2005). The court concluded that the First Amendment right of access was a right to attend court proceedings; it did not compel the trial court to reveal the jurors' names and addresses. Long, 871 A.2d at 1269. "Inasmuch as the [Appellants] have not contended that they have been denied access to any judicial proceedings or to any transcripts of judicial proceedings, we conclude ... that the [Appellants'] constitutional qualified right of access has not been violated." Id.

In reaching this conclusion, the court initially explained that the First Amendment qualified right of access forbids closure of the proceedings. See id. at 1269-70 (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise II)). This case, however, did not involve closure, since all of the proceedings, including voir dire, were open to the public and press. Id. at 1270. Accordingly, the court believed it did not need to undertake any further First Amendment analysis. The court also looked to other states' case law for support, relying on Gannett Co. v. State of Delaware, 571 A.2d 735 (Del.1989), for the proposition that even if the Press-Enterprise analysis were applicable, the First Amendment did not encompass a right of access to jurors' names and addresses. Long, 871 A.2d at 1270-71. Last, the court considered other sources, including legislation from other states, demonstrating an intent to protect the privacy interests of jurors in instances such as those present in this case. Id. at 1271-72.

The court next examined whether a common law right of access required access to jurors' names and addresses under Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987). This court in Fenstermaker held that public judicial documents must be open to the public. Long, 871 A.2d at 1275. The court explained that prior Superior Court case law interpreting Fenstermaker looked at whether the document was docketed, formally filed with the court, or required by a rule of procedure, in determining its public nature. Id. Because the jurors' names and addresses were not part of the public record or required by any rule of criminal procedure, the court concluded that no common law right of access required their disclosure. Id. at 1276.

Appellants filed a Petition for Allowance of Appeal with this court, which we granted, limited to the following issue:

Whether the First Amendment to the United States Constitution, Article I, Section 11 of the Pennsylvania Constitution, and/or the common law provide a right of access to the names and addresses of impaneled jurors in a criminal case?

Commonwealth v. Long, 584 Pa. 438, 884 A.2d 249 (2005).

Preliminarily, we note that this court has jurisdiction over the instant matter as an appeal as of right from a collateral order. Pa.R.A.P. 313. Furthermore, while Appellants have obtained access to the jurors' names and addresses in this case and the issue is therefore moot, we will review the issues raised since they are capable of repetition yet likely to evade review and involve an issue important to the public interest. Public Defender's Office of Venango County v. Venango County Court of Common Pleas, 586 Pa. 317, 893 A.2d 1275 (2006). Because this case presents only questions of law, our standard of review is de novo and our scope of review is plenary. Buffalo Twp. v. Jones, 571 Pa. 637, 813 A.2d 659 (2002).

We turn first to the argument that the common law provides a right of access to the names and addresses of impaneled jurors in a criminal case, since it is the policy of this Court to resolve claims on non-constitutional grounds in the first instance. See In re Fiori, 543 Pa. 592, 673 A.2d 905, 909 (1996) (courts should avoid constitutional issues when the issue at hand may be decided upon other grounds); Commonwealth v. Kennedy, 583 Pa. 208, 876 A.2d 939, 949 n. 10 (2005); Commonwealth v. Allsup, 481 Pa. 313, 392 A.2d 1309, 1311 (1978) (policy of this Court is to avoid the resolution of constitutional questions when there appears a non-constitutional ground for decision). Preliminarily, we note that there is overlap between the common law and the constitutional inquiries, since both rights of access seek to foster the fairness and the appearance of fairness of the criminal justice system by ensuring that the public has access to proceedings. See Fenstermaker, 530 A.2d at 417-18. Nevertheless, there is a distinction between the two inquiries, as the First Amendment provides a greater right of public access than the common law.⁶ See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir.2006). For the reasons that follow, we conclude that there is no common law right of...