Des Moines Register & Tribune Co. v. Iowa Dist. Court for Story County

Decision Date15 June 1988
Docket NumberNo. 86-1810,86-1810
Citation426 N.W.2d 142
CourtIowa Supreme Court

Kasey W. Kincaid and K.J. Walker, of Nyemaster, Goode, McLaughlin, Emery & O'Brien, P.C., Des Moines, for petitioner.

Thomas J. Miller, Atty. Gen., Ann E. Brenden, Asst. Atty. Gen., and Mary E. Richards, County Atty., for respondent.



On December 2, 1986, a house fire in Ames, Iowa, claimed the lives of two children. Following an investigation, Dale Eugene Royer was arrested and charged with arson in the first degree and two counts of murder in the first degree. The court scheduled a preliminary hearing for December 17, 1986. On December 16, the defense attorney requested that the preliminary hearing be closed pursuant to Iowa Rule of Criminal Procedure 2(4)(d). This rule provides:

d. Private hearing. The magistrate must also, upon request of the defendant, exclude from the hearing all persons except the magistrate, the magistrate's clerk, the peace officer who has custody of the defendant, a court reporter, the attorney or attorneys representing the state, a peace officer selected by the attorney representing the state, the defendant and the defendant's counsel.

The Des Moines Register & Tribune Company (Register), learned of the closure request and filed a petition of intervention requesting the preliminary hearing be open to the public and press. A hearing on the closure request was held on December 17. Although no evidence was offered, defense counsel argued that Royer had a statutory right to a private preliminary hearing under the Iowa Rules of Criminal Procedure. He urged that Royer's right to a fair trial would be jeopardized if the preliminary hearing was open to the public and press because pretrial publicity of prejudicial evidence would harm the ability to find a fair jury. The state made no objection to the defendant's request for closure.

The district associate judge found that the public and press have a first amendment right to attend preliminary hearings; however, the judge closed the preliminary hearing to protect Royer's right to a fair trial. The Register immediately filed an application for writ of certiorari and stay with this court. We denied the Register's request for an order staying the preliminary hearing and the preliminary hearing was conducted on December 17 as scheduled.

At the conclusion of the closed preliminary hearing, the associate judge granted Royer's motion to seal the transcript and documents relating to the preliminary hearing. The next day, the Register filed an amended application for writ of certiorari and request for stay with this court. We granted the Register's amended application and stayed the order which sealed the records of the preliminary hearing. We did not stay prosecution of the criminal case, State v. Royer.

The Register challenges the legality of the district associate judge's order by its application for a writ of certiorari. Iowa Rule of Civil Procedure 306 states:

A writ of certiorari shall only be granted ... where an inferior tribunal ... is alleged to have exceeded its ... proper jurisdiction or otherwise have acted illegally.

Illegality exists within the meaning of rule 306 when the findings on which the tribunal based its conclusions of law do not have substantial evidentiary support. Fetters v. Degnan, 250 N.W.2d 25, 27 (Iowa 1977). Illegality also exists when the tribunal does not apply the proper law. Hightower v. Peterson, 235 N.W.2d 313, 317 (Iowa 1975). Normally, our review by certiorari is at law, but where violations of basic constitutional safeguards are involved our review is de novo and we make our own evaluation of the record from the totality of the circumstances. Iowa Freedom of Information Council v. Wifvat, 328 N.W.2d 920, 922 (Iowa 1983).

Although our decision will have no effect on the criminal case, State v. Royer, we proceed to the merits in this proceeding because the issue raised is of public importance and the problem is likely to recur. Wifvat, 328 N.W.2d at 922.

This proceeding challenges the constitutionality of Iowa Rule of Criminal Procedure 2(4)(d). It demonstrates the tension between the right to a fair trial found in the sixth and fourteenth amendments and the implied right of access to criminal proceedings found in the first amendment. 1 The right to an open public trial is not solely in the possession of the accused, the public, or the press. Earlier jurisprudence characterized the constitutional guarantee of a public trial as "personal to the accused," and not available for exercise by the public. See Gannett Co. v. DePasquale, 443 U.S. 368, 379, 99 S.Ct. 2898, 2905-06, 61 L.Ed.2d 608, 621 (1979). Recent cases have discarded that view and recognize the right to a public trial as a "shared right of the accused and the public," designed to open the criminal process to neutral observers in order to provide for fairness. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1, 9 (1986). The right to an open trial reflects the purpose of the first amendment; "to guarantee all facets of each right described." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 n. 14, 100 S.Ct. 2814, 2828 n. 14, 65 L.Ed.2d 973, 990 n. 14 (1980) (plurality opinion). While pretrial publicity can reach a level which has a negative impact on the accused's right to an impartial jury, see Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 552, 96 S.Ct. 2791, 2799, 49 L.Ed.2d 683, 693-94 (1976), the first amendment right of access serves to insure the fairness of the criminal justice system by providing for public scrutiny.

The constitutional standards for public access to certain phases of the criminal process have been defined by the United States Supreme Court. The Court has recognized that the first amendment implicitly guarantees the public a right to attend criminal trials. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973, 991-92 (1980) (plurality opinion). Prior to Richmond Newspapers, however, the Court held that there was not a right of public access to grand jury proceedings. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156, 164 (1979).

In 1982, the Supreme Court extended the implicit right of public access to criminal trials and struck down a Massachusetts statute providing for exclusion of the general public from trials of specified sexual offenses involving a victim under the age of eighteen. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 610-11, 102 S.Ct. 2613, 2622, 73 L.Ed.2d 248, 260 (1982). The Court recognized the possibility of a compelling interest to bar press and public access to criminal sex-offense trials during the testimony of minor victims, but held that there was no justification for a mandatory closure rule. The interests served by closure were to be considered on a case-by-case basis. Id. at 608, 102 S.Ct. at 2621, 73 L.Ed.2d at 258. In holding that the Massachusetts law violated the first amendment, the Court emphasized the important role that public scrutiny of the criminal justice process serves in our form of self-government. Id. at 606, 102 S.Ct. at 2619-20, 73 L.Ed.2d at 256.

At this point, the right of access to the criminal trial was well established. The focus of legal development now shifted to a determination of whether the right of access to a criminal trial created a right of access to other phases of the criminal process; such as pretrial hearings, jury selection proceedings, and bail reduction hearings.

In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the Supreme Court articulated a sixth amendment right of public access to pretrial suppression hearings. See also Iowa Freedom of Information Counsel v. Wifvat, 328 N.W.2d 920, 924 (Iowa 1983) (Iowa recognized constitutional right of access to pretrial suppression hearing prior to Waller ). That same year, the Court recognized a right of access to jury selection proceedings in a criminal trial. See Press-Enterprise v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 822-24, 78 L.Ed.2d 629, 638 (1984) (Press-Enterprise I ) ("[T]he primacy of the accused's right is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness."). The Court went on to state:

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 demonstrate whether the closure order was properly entered.

Id. at 510, 104 S.Ct. at 824, 78 L.Ed.2d at 638.

Other federal cases have recognized a right of public access to bail reduction hearings. See United States v. Chagra, 701 F.2d 354, 363-64 (5th Cir.1983); see also In re Globe Newspapers Co., 729 F.2d 47, 51-52 (1st Cir.1984) (follows Chagra and holds that first amendment right of access attaches to bail proceedings); Application of Herald Co., 734 F.2d 93, 99 (2nd Cir.1984) (favorably citing Chagra ). In addition to bail reduction hearings, federal courts have recognized a qualified right of public access to other aspects of the criminal process. See, e.g., United States v. Haller, 837 F.2d 84, 86 (2d Cir.1988) (constitutional right of access to plea hearings and plea agreements); In re New York Times Co., 828 F.2d 110, 114-15 (2d Cir.1987) (qualified right of access to written documents submitted in connection with judicial proceedings that implicate the right of access); In re Washington Post, 807 F.2d 383, 389 (4th Cir.1986) (qualified right of public access...

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