Craemer v. Superior Court In and For Marin County

• Decision Date: 27 August 1968
• Citation: 265 Cal.App.2d 216,71 Cal.Rptr. 193
• Court: California Court of Appeals Court of Appeals
• Parties: Jack CRAEMER, Stephen Cook and California Newspapers, Inc., Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MARIN, Respondent. Civ. 25446.

Page 193

71 Cal.Rptr. 193

265 Cal.App.2d 216

Jack CRAEMER, Stephen Cook and California Newspapers, Inc., Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MARIN, Respondent.

Civ. 25446.

Court of Appeal, First District, Division 1, California.

Aug. 27, 1968.

Freitas, Allen, McCarthy & Bettini, San Rafael, for petitioners.

Douglas J. Maloney, County Counsel for the County of Marin, San Rafael, for respondent.

Marshall W. Krause, Paul N. Halvonik, American Civil Liberties Union of Northern California, San Francisco, Theodore C. Lachelt, San Rafael, for amicus curiae.

MOLINARI, Presiding Justice.

Petitioners, Stephen Cook (a reporter for the newspaper 'Independent-Journal'), Jack Craemer (editor of the 'Independent-Journal') and California Newspapers, Inc. (owner and publisher of the 'Independent-Journal'), seek this writ of mandate to compel respondent superior court to vacate its order prohibiting the inspection of the transcripts of the testimony of witnesses at grand jury proceedings. ¹

The Grand Jury of Marin County returned indictments against sixteen named defendants, all of whom were thereafter arrested and taken into custody. At the time the indictments were returned and necessarily before the preparation and filing of the reporter's transcripts of the proceedings before the grand jury, Judge Wilson, the judge receiving the indictments, ordered that '* * * the indictments remain sealed until each defendant is taken into custody, that the original of Grand Jury Transcripts be delivered to the District Attorney and the copies in possession of the clerk remain sealed, a copy to any defendant who is arrested and appears. The District Attorney is ordered not to disclose the contents of the Grand Jury transcript to unauthorized personnel, specifically newspapers, and the Clerk is not to furnish a copy of the transcript to any person without authority of the Court.'

After the transcripts were filed with the Marin County Clerk, petitioner Cook sought inspection. The clerk refused access to the transcripts, relying upon the order of the superior court. Cook then requested authorization from Judge Wilson to inspect the transcripts, but inspection was denied. At the same time Judge Wilson stated that he has plans to seal all future grand jury transcripts to eliminate pretrial publicity by the press in serious criminal cases.

Although petitioners recognize that the trial court based upon Penal Code section 938.1, had the power to restrict an inspection of the transcripts until the defendants were taken into custody, ² petitioners challenge that portion of Judge Wilson's order which restricts inspection after the defendants are taken into custody. In that regard petitioners contend that they are entitled to inspect the transcripts because they are public records and that Judge Wilson's order abridges freedom of the press and denies a public trial. Respondents superior court contends that it has the power to take all measures which it deems reasonably necessary to insure that defendants charged with crime will receive fair trial without the taint of outside influence or extrajudicial statements, and that its order in the instant case did not abuse its discretion. Jan De Bruyn, one of the defendants who has appeared to oppose the petition, supports the contention of the respondent court. The American Civil Liberties Upon of Northern California, as amicus curiae, takes the position that the trial court has inherent power to restrict a grand jury transcript, but asserts that this power must be based upon factual findings that the right to a fair trial will be impaired by an inspection of the transcript.

Adverting to these contentions we first point out that there is no issue in the present case with respect to the alleged denial of a public trial. Defendants have not yet been brought to trial and we find nothing in the record to indicate that the trial, or any of the court proceedings preliminary to the trial, or any of the sittings of the court in connection with the instant indictments, will not be open to the public and to petitioners, as members of the general public. (See U.S.Const., 6th Amend.; Cal.Const., art I, § 13; Pen.Code, § 686.) In this regard we point out that the right of petitioners to attend the trial does not devolve upon them as representatives of the press but as members of the general public. (See Cembrook v. Sterling Drug Inc., 231 Cal.App.2d 52, 58--60, 41 Cal.Rptr. 492; Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 754--755, 300 P.2d 163.) We also note that the publication of a trial in the news media is not a necessary adjunct of the right to a public trial and that such right does not carry with it the concomitant right that the trial be publicized in the news media. (Cembrook v. Sterling Drug Inc., supra, 231 Cal.App.2d at pp. 59--60, 41 Cal.Rptr. 492.)

Turning our attention to the issue of free press, we perceive that it is only indirectly and collaterally involved in this case. The key issue here is whether access to and inspection of public records may be withheld in order to insure that a defendant in a criminal action will receive a fair trial, a right which is guaranteed by the United States and California Constitutions. (See Estes v. State of Texas, 381 U.S. 532, 539--540, 85 S.Ct. 1628, 14 L.Ed.2d 543; Rochin v. People of State of California, 342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183; Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166.) In Estes the Supreme Court emphatically stated: 'We have always held that the atmosphere essential to the preservation of a fair trial--the most fundamental of all freedoms--must be maintained at all costs.' (P. 540 of 381 U.S., p. 1632 of 85 S.Ct.)

In this state the terms 'public records' and 'public writings' are used synonymously. (See Hibernia Savings and Loan Soc. v. Boyd, 155 Cal. 193, 200, 100 P. 239; People v. Howard, 72 Cal.App. 561, 563--564, 237 P. 780.) A 'public writing,' insofar as here pertinent, is defined in Code of Civil Procedure, section 1888 as 'The written acts or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial, and executive, * * *' Public writings, in turn, are classified by Code of Civil Procedure, section 1894 as '1. Laws; 2. Judicial records; 3. Other official documents; 4. Public records, kept in this State, of private writings.' It is clear that within the meaning of the foregoing statutes the transcripts filed with the county clerk after the return of the indictments by the grand jury are 'public writings.' (See Walker v. Superior Court, 155 Cal.App.2d 134, 138--139, 317 P.2d 130.)

In California the right to inspect public writings has been codified in two statutes. ³ (Bruce v. Gregory, 65 Cal.2d 666, 673, 56 Cal.Rptr. 265, 423 P.2d 193.) Section 1227 of the Government Code reads: 'The public records in other matters in the office of any officer, Except as otherwise provided, are at all times during office hours open to inspection of any citizen of the State.' (Italics added.) Code of Civil Procedure, section 1892 provides: 'Every citizen has a right to inspect and take a copy of any public writing of this State, Except as otherwise expressly provided by statute.' (Italics added.) As indicated by the provisions of the statutes the Legislature is empowered to provide for statutory exemptions. Accordingly, the right of a citizen to inspect public writings has been restricted by statute in a variety of situations some of which are set out in the footnote. ⁴

To the many statutory exceptions the courts have added other exceptions which apply to situations not covered by statute. (See Runyon v. Board, etc., of Cal., 26 Cal.App.2d 183, 185, 79 P.2d 101 (letters and documents in possession of parole board); Chronicle Pub. Co. v. Superior Court, 54 Cal.2d 548, 569, 7 Cal.Rptr. 109, 354 P.2d 637 (State Bar records in disciplinary proceedings); City & County of San Francisco v. Superior Court, 38 Cal.2d 156, 161--162, 238 P.2d 581 (communication in official confidence); City Council of City of Santa Monica v. Superior Court, 204 Cal.App.2d 68, 75, 21 Cal.Rptr. 896 (communication in official confidence); Smith v. Paul, 174 Cal.App.2d 744, 751--752, 345 P.2d 546, 77 A.L.R.2d 1036 (architect's plans); Markwell v. Sykes, 173 Cal.App.2d 642, 647--648, 343 P.2d 769 (communication in official confidence); Jessup v. Superior Court, 151 Cal.App.2d 102, 108, 311 P.2d 177 (communication in offical confidence); People v. Wilkins, 135 Cal.App.2d 371, 377, 287 P.2d 555 (confidential records of police department); People v. Pearson, 111 Cal.App.2d 9, 18, 244 P.2d 35 (confidential records of sheriff's office).)

In Runyon, supra, the applicable rule is stated thusly: '(T)he courts have consistenly declared that in another class of cases public policy demands that certain communications and documents shall be treated as confidential and therefore are not open to indiscriminate inspection, notwithstanding that they are in the custody of a public officer or board and are of a public nature. (Citation.) Included in this class are documents and records kept on file in public institutions, concerning the condition, care, and treatment of the inmates thereof, and the files in the offices of those charged with the execution of the laws relating to the apprehension, prosecution, and punishment of criminals. (Citation.)' (26 Cal.App.2d at pp. 184--185, 79 P.2d at p. 101.)

In Bruce, supra, the California Supreme Court, while recognizing that it is the policy of this state that public records and documents be kept open for public inspection in order to prevent secrecy in public affairs (65 Cal.2d p. 677, 56 Cal.Rptr. 265, 423 P.2d 193), held, nevertheless, 'that the rights created by section 1892 of the Code of Civil Procedure and section 1227 of the Government Code, are, by...