Ex parte Birmingham News Co., Inc.
| Decision Date | 18 June 1993 |
| Court | Alabama Court of Criminal Appeals |
| Parties | 21 Media L. Rep. 1769 Ex parte The BIRMINGHAM NEWS COMPANY, INC., The Associated Press, and The Advertiser Company, Inc. (In re STATE of Alabama v. Harold Guy HUNT). CR 92-971. |
This is a petition for writ of mandamus filed in this Court by The Birmingham News Company, Inc., The Associated Press, The Advertiser Company, and joined by the Alabama Press Association, as intervenor, seeking to compel Judge H. Randall Thomas of the Circuit Court of Montgomery County to open to the press the pretrial proceedings in the criminal prosecution of the governor of Alabama. "The news media generally have standing to intervene in a criminal proceeding to object to a motion to 'seal' court records that would otherwise be a matter of public information." Ex parte Balogun, 516 So.2d 606, 611 (Ala.1987).
On December 28, 1992, a special grand jury sitting in Montgomery County returned an indictment charging then Governor Guy Hunt with theft of property in the first degree, in violation of Ala.Code 1975, § 13A-8-3, and with using the office of governor to obtain direct personal financial gain, in violation of the state ethics law, see Ala.Code 1975, § 36-25-5. Also indicted in connection with the criminal prosecution of the governor were A. Gene McKenzie, Edna Earle Hicks, and Rosalind Blocher.
The governor's case was assigned to Circuit Judge H. Randall Thomas. Certain pretrial proceedings involving all four defendants were held in March 1993. During the course of those proceedings, Judge Thomas, on his own motion and without prior notice to the public or press, issued a "no comment" or "gag" order on the parties and their attorneys and conducted certain proceedings in chambers, with the public and press excluded.
On March 18, 1993, The Birmingham News Company, Inc., publisher of The Birmingham News; The Associated Press; and The Advertiser Company, publisher of The Montgomery Advertiser (all hereintogether referred to as "Petitioners") filed in this Court a petition for writ of mandamus alleging that Judge Thomas was in violation of the First Amendment by denying the public and the press access to the pretrial hearings held in chambers.
In their petition, Petitioners sought to have this Court direct Judge Thomas:
Petition filed March 18, 1993, pp. 2-3.
On the same date the petition was filed, this Court 1 issued an order directing Judge Thomas to file
On March 19, 1993, Judge Thomas requested and was granted an extension of time in which to file his findings on the ground that counsel required additional time to file a response. On that same date, The Alabama Press Association (hereinafter "APA") filed a motion to intervene, which was granted on March 22, 1993. Judge Thomas' answer was also filed on March 22. Petitioners and APA filed separate responses to Judge Thomas' answer.
The matter was argued orally before this Court on the morning of March 30, 1993. That afternoon, this Court entered the following order:
On April 7, 1993, the circuit court held a hearing regarding this Court's order of March 30, 1993. On April 9, 1993, the circuit court entered an order releasing most of the court records and the hearing transcripts previously ordered sealed. In its order of April 9, 1993, the circuit court stated that its reasons for continuing to deny access to certain of the records and portions of the transcript were that those records and transcript portions relate to grand jury matters, involve matters that are subject to the attorney-client privilege, or concern plea negotiations. Contrary to the direction of this Court, the trial court did not "prepare specific and detailed written findings with regard to each portion of the prior proceedings or court file which the Circuit Court orders shall remained closed or sealed."
On April 15, 1993, APA filed a "letter brief," arguing that "the trial court still has failed to comply with the constitutional requirements of the First Amendment regarding public access to pretrial criminal proceedings and has failed to comply with the directives of the Ex parte Consolidated Publishing case and of this Court." Letter brief of April 15, 1993, at 5. APA requests that this Court "implement the provisions of its prior order requiring the trial court to release these remaining portions of the transcript of the closed proceedings." Id.
Although Governor Hunt's trial began on April 12, 1993, and concluded on April 22 when the jury returned a guilty...
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