Ex parte Birmingham News Co., Inc.

• Decision Date: 18 June 1993
• Citation: 624 So.2d 1117
• 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.

Page 1117

624 So.2d 1117

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.

Court of Criminal Appeals of Alabama.

June 18, 1993.

James C. Barton, Gilbert E. Johnston, Jr. and Hollinger F. Barnard, Birmingham, for petitioners.

E. Cutter Hughes, Jr., H. Knox McMillan and G. Rick Hall, Huntsville, for Alabama Press Ass'n.

James H. Evans, Atty. Gen., and George Lamar Beck, Jr., Montgomery, for respondents.

Richard Gill, Robert Segall, Terry Brown and Fairley McDonald III, Montgomery, for Judge Randall Thomas.

PETITION FOR WRIT OF MANDAMUS

BOWEN, Presiding Judge.

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).

I. Background

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:

"1. To cease conducting closed proceedings in the case of State of Alabama v. Harold Guy Hunt, Criminal Case No. CC-92-2608 in the Circuit Court of Montgomery County, Alabama (the "Hunt case") without first hearing arguments against closure and making specific on-the-record findings demonstrating that closure is essential to preserve higher values and that the closure order is narrowly tailored to serve those interests, all as required by the First Amendment of the United States Constitution and by the Supreme Court of Alabama, Ex parte Consolidated Publishing Co., 601 So.2d 423, 433 (Ala.1992), cert. denied, 61 U.S.L.W. 3418 [506 U.S. 1024, 113 S.Ct. 665, 121 L.Ed.2d 590] (Dec. 8, 1992).

"2. To permit Petitioners to have access to the transcripts of proceedings in the Hunt case that have been closed to the public to date; and

"3. To unseal the court file for the Hunt case, or the substantial portions thereof that are under seal, and to permit Petitioners to have access to such file."

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 "his findings demonstrating that closure of the proceedings ... is essential to preserve higher values than those established in the First Amendment of the United States Constitution. These findings should meet the requirements of Ex parte Consolidated Publishing Co., 601 So.2d 423 (Ala.1992)."

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:

"A petition for a writ of mandamus has been filed by The Birmingham News Company, The Associated Press, and The Advertiser Company, directed to Montgomery County Circuit Judge H. Randall Thomas in connection with the case of State of Alabama v. Harold Guy Hunt, Criminal Case Number CC-92-2608. After oral argument of the parties and conscientious deliberation this Court enters the following findings and order in the exercise of the constitutional authority provided in § 6.03(d), Amendment 328, Alabama Constitution of 1901:

"1. It is the finding of this Court that the Circuit Court, by the manner in which it ordered the closure of certain pretrial proceedings and the court file in the above-styled cause, violated the constitutional provisions of the First Amendment guaranteeing the public and the news media the right of access to criminal proceedings. See Ex parte Consolidated Publishing Company, Inc., 601 So.2d 423 (Ala.1992).

"2. It is the finding of this Court that the answer of Judge Thomas filed in response to this Court's order of March 18, 1993, is inadequate to meet constitutional requirements and does not satisfy the demands of Ex parte Consolidated Publishing Company, Inc., 601 So.2d 423 (Ala.1992).

"3. Therefore, unless the Circuit Court complies with the further order of this Court as set out below, it is the order of this Court that the Circuit Court shall immediately afford the Petitioners access to the complete and entire transcripts and court file of all prior proceedings which were ordered closed in the case of State v. Hunt, supra.

"4. Such immediate and complete disclosure shall not be required in the event that the Circuit Court complies with the following requirements:

"a. The Circuit Court shall conduct a hearing which is open to the public and the news media.

"b. At that hearing, the Circuit Court, after hearing argument from the parties, shall specify by individual transcript page number which portions and which pages of the transcripts of the prior proceedings and which portion of the court file are to remain closed or sealed and to which the news media and the public shall continue to be denied access.

"c. The Circuit Court shall specifically and individually address those proceedings previously ordered closed on the grounds of grand jury matters and attorney-client privilege. The Circuit Court shall specifically address the "grand jury matters" in regard to any criminal prosecution of any potential defendant.

"d. At the hearing, the presumption shall be that the entire prior proceedings should have been open. The burden of proof shall be on the party requesting closure. Clear and convincing evidence must be presented in order to justify the continued closure of any portion of any prior proceeding or sealing of any portion of the court file. Holland v. Eads, (Ala.1993).

"e. The Circuit Court shall prepare specific and detailed written findings with regard to each portion of the prior proceedings or court file which the Circuit Court orders shall remain closed or sealed. Each such portion shall be identified by transcript page number and a specific and precise reason or reasons for closure shall accompany each portion which the Circuit Court orders closed.

"f. The above hearing shall be conducted on or before April 9, 1993. The written findings of the Circuit Court shall be filed in this Court on or before 5:00 on the afternoon of that same date.

"5. No future proceeding and no portion of the court file in the case of State v. Hunt, supra, shall be ordered closed or sealed without strict compliance with the constitutional requirements of Ex parte Consolidated Publishing Company, Inc., 601 So.2d 423 (Ala.1992)."

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...