Federated Publications, Inc. v. Kurtz

• Decision Date: 24 July 1980
• Docket Number: No. 46124,46124
• Citation: 94 Wn.2d 51,615 P.2d 440
• Parties: , 6 Media L. Rep. 1577 FEDERATED PUBLICATIONS, INC., a Delaware Corporation authorized and doing business in the State of Washington as The Bellingham Herald, Petitioner, v. J. S. KURTZ, as Judge of the Whatcom County Superior Court, Jo Elliott Tharp, Philip Sharpe, David S. McEachran as Prosecuting Attorney of Whatcom County, State of Washington, John Doe One, Two, Three and Four, Respondents.
• Court: Washington Supreme Court

Page 51

94 Wn.2d 51

615 P.2d 440, 6 Media L. Rep. 1577

FEDERATED PUBLICATIONS, INC., a Delaware Corporation authorized and doing business in the State of Washington as The Bellingham Herald, Petitioner, v. J. S. KURTZ, as Judge of the Whatcom County Superior Court Jo Elliott Tharp, Philip Sharpe, David S. McEachran as Prosecuting Attorney of Whatcom County, State of Washington John Doe One, Two, Three and Four, Respondents.

No. 46124.

Supreme Court of Washington, En Banc.

July 24, 1980.

Nixon, Hargrave, Devans & Doyle, Robert C. Bernius, Rochester, N. Y., Beaty & Childress, Robert E. Beaty, Bellingham, for petitioner.

Davis, Wright, Todd, Riese & Jones, P. Cameron DeVore, Stephen C. Sieberson, Seattle, for amicus curiae.

Professor George R. Nock, Professor James E. Beaver, Tacoma, David S. McEachran, Pros. Atty., Gene R. Moses, Deputy Pros. Atty., Bellingham, for respondent.

Slade Gorton, Atty. Gen., Kevin Ryan, Asst. Atty. Gen., Olympia, Brett, Brinn, Daugert & Erickson, Lawrence B. Daugert, Bellingham, for respondents.

WILLIAMS, Justice.

This case presents the question of whether a trial court properly barred the press and public from a pretrial suppression hearing. We hold that it did.

The stipulated facts giving rise to this action against a state officer are as follows:

On November 1, 1978, the State of Washington charged Jo Elliott Tharp with the crime of murder in the second degree, alleging that on March 30, 1978, Tharp had murdered William Ray Bond.

From April 1, 1978 through March 23, 1979, petitioner Federated Publications, Inc., a Delaware corporation doing business in Whatcom County as the Bellingham Herald, published 16 newspaper articles concerning the Bond homicide and the Tharp prosecution. During this same period of time, the Whatcom County Sheriff's Department and the Bellingham Police Department issued an unspecified number of news releases concerning the Tharp case. The above events were also covered during these months by seven radio and television stations which operate in Whatcom County.

Based on the notoriety given the case, defendant Tharp's attorney moved for a change of venue, which was granted by Judge Jack Kurtz on January 24, 1979. The trial was set for April 2, 1979, in the Superior Court for Skagit County. The Bellingham Herald has a weekly circulation of 939 households and a Sunday circulation of 1,251 in Skagit County, where the estimated 1978 population was 63,000 people.

On March 16, 1979, a suppression hearing was held in State v. Tharp before Judge Kurtz in Whatcom County Superior Court. Among those present was a news reporter from the Herald. The hearing had several purposes: (1) to determine pursuant to CrR 3.5 the admissibility of certain statements made by the defendant; (2) to rule on defendant's motion to suppress evidence of his prior convictions; and (3) to rule on a defense motion to suppress circumstantial evidence which tended to link defendant Tharp's involvement in two prior car thefts with the Bond homicide.

After the CrR 3.5 hearing, the defense attorney and the prosecuting attorney jointly moved the court to order the remainder of the suppression hearing closed. After a short discussion between counsel, the court, and the news reporter, Judge Kurtz ordered the courtroom closed and the file sealed.

On April 2, 1979, a jury panel was convened in Skagit County Superior Court with Judge Kurtz presiding. Thereafter, petitioner filed in this court a petition against a state officer in the nature of prohibition or declaratory judgment pursuant to RAP 16.2(b), naming as respondents Judge Kurtz, defendant Tharp, defense counsel Philip Sharpe, and Whatcom County Prosecuting Attorney David S. McEachran. The petition sought an order (1) vacating the order of closure, (2) opening the court file, including the transcript of the suppression hearing in State v. Tharp, and (3) permanently enjoining Judge Kurtz "from committing future violations of the type complained of".

On April 9, 1979, Judge Kurtz signed an order opening the suppression and confession hearing file. The record does not disclose the result of the Tharp prosecution.

An amended petition filed April 12, 1979 sought in addition a declaratory judgment that the closure order violated petitioner's rights under the Washington Constitution.

All respondents moved to dismiss the petition. On June 26, 1979, this court issued an order which granted motions to dismiss respondents Tharp, Sharpe, and McEachran and denied a motion to dismiss respondent Kurtz, who remains the sole respondent in this action.

I.

We note at the outset that this case is at least technically moot. The suppression hearing has long since been completed, so that granting petitioner's prayer for vacation of the closure order would be pointless. Moreover, the request that this court order the sealed file opened and a verbatim transcript supplied cannot be granted, since respondent ordered that relief on April 9, 1979.

We have agreed, however, to review otherwise moot cases "if matters of continuing and substantial interest are involved." In re Patterson, 90 Wash.2d 144, 148, 579 P.2d 1335 (1978). Specifically, if a case presents a question of a public nature which is likely to recur, and if an authoritative determination now is desirable for the guidance of public officials, we shall not refuse to decide it on its merits. In re Patterson; Hartman v. State Game Comm'n, 85 Wash.2d 176, 532 P.2d 614 (1975). It is apparent that the present case meets these requirements.

II.

Were we to resolve this question under the United States Constitution, we would be bound by the recent decision in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), a case procedurally and factually indistinguishable from the present case in all important respects. The Court there emphasized its earlier holdings which accord a heavy weight to a criminal defendant's rights to a fair trial under the Sixth Amendment:

This Court has long recognized that adverse publicity can endanger the ability of a defendant to receive a fair trial. E. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 ((1966)) . . .; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 ((1961)); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 ((1959)). Cf. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 ((1965)). To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Sheppard v. Maxwell, supra. And because of the Constitution's pervasive concern for these due process rights, a trial judge may surely take protective measures even when they are not strictly and inescapably necessary.

DePasquale, at 378, 99 S.Ct. at 2904, 61 L.Ed.2d at 620.

Among the kinds of pretrial publicity posing a threat to a fair trial, the Court stated, is publicity concerning pretrial suppression hearings:

Publicity concerning pretrial suppression hearings such as the one involved in the present case poses special risks of unfairness. The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 28 Ohio Ops.2d 177, 1 A.L.R.3d 1205 ((1964)). Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.

The danger of publicity concerning pretrial suppression hearings is particularly acute, because it may be difficult to measure with any degree of certainty the effects of such publicity on the fairness of the trial. After the commencement of the trial itself, inadmissible prejudicial information about a defendant can be kept from a jury by a variety of means. When such information is publicized during a pretrial proceeding, however, it may never be altogether kept from potential jurors. Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has even begun. Cf. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 ((1963)).

(Footnotes omitted. Italics ours.) DePasquale, at 378, 99 S.Ct. at 2905, 61 L.Ed.2d at 620-21.

While the Court recognized, at the least, a "strong societal interest" in open judicial proceedings, DePasquale, at 383, 99 S.Ct. at 2907, 61 L.Ed.2d at 623, it concluded that society's interest in the case was outweighed by the reasonable probability of prejudice to the defendants. DePasquale, at 393, 99 S.Ct. at 2912, 61 L.Ed.2d at 629. Scrutinizing all the circumstances, including the trial court's granting of petitioner's motion to be heard on the closure issue, the Court held that press and public had no affirmative constitutional right of access to a pretrial proceeding where a defendant's fair trial rights were threatened. DePasquale, at 394, 99 S.Ct. at 2913, 61 L.Ed.2d at 630. ¹ Since we perceive no important factual differences between DePasquale and the present case, we are compelled to conclude that respondent's closure order and order temporarily sealing the file did not violate the United States Constitution.

III.

We prefer, however, to resolve the present case under our own state constitution. This we do for several reasons. Most important is the significant textual difference, discussed below, between the Washington and United States constitutions in the matter of open judicial proceedings.

Secondly, the DePasquale opinion, while authoritative as to the content of the Sixth Amendment right to a fair and impartial jury, is not clear on the source of...