Forum Communications Co. v. Paulson

• Decision Date: 07 July 2008
• Docket Number: No. 20080052.,20080052.
• Citation: 2008 ND 140,752 N.W.2d 177
• Parties: FORUM COMMUNICATIONS COMPANY, Petitioner v. The Honorable John T. PAULSON, Judge of the District Court, Southeast Judicial District, State of North Dakota, and Moe Maurice Gibbs, Respondents.
• Court: North Dakota Supreme Court

752 N.W.2d 177

2008 ND 140

FORUM COMMUNICATIONS COMPANY, Petitioner v. The Honorable John T. PAULSON, Judge of the District Court, Southeast Judicial District, State of North Dakota, and Moe Maurice Gibbs, Respondents.

No. 20080052.

Supreme Court of North Dakota.

July 7, 2008.

Steven A. Johnson (on brief), Michael T. Andrews (on brief), and David L. Tilden (on brief), Vogel Law Firm, Fargo, N.D., for petitioner.

Steven A. Storslee (on brief), Special Assistant Attorney General, Bismarck, N.D., for respondent the Honorable John T. Paulson.

Jonathan R. Byers (on brief), Assistant Attorney General, Office of Attorney General,

Bismarck, N.D., for respondent State of North Dakota.

MARING, Justice.

[¶ 1] Forum Communications Company petitioned for a supervisory writ directing district court Judge John T. Paulson to vacate his order sealing juror questionnaires and any other information that would help identify the full names of jurors in the concluded Bismarck murder trial of Moe Maurice Gibbs. We exercise our original jurisdiction and issue a supervisory writ reversing the district court's order and directing the court to consider Forum Communications' request for information under the guidelines specified in this opinion.

I

[¶ 2] Gibbs was charged in Barnes County with murdering Valley City State University student Mindy Morgenstern in her Valley City apartment. The case was assigned to Judge Paulson, a district court judge in the Southeast Judicial District. Because of pretrial publicity, the district court moved the trial from Barnes County to Minot in Ward County. In June 2007, the court approved expanded media coverage of the trial, but issued an order restricting extrajudicial comments to the media or the public.

[¶ 3] Before trial, the State and Gibbs stipulated to use a thirty-four page jury questionnaire for prospective jurors to answer before trial to assist the parties in picking a jury. The questionnaire consisted of 169 questions divided into several broad categories, including personal information identifying the prospective juror, residence, family, education, employment, previous employment, personal, military, law enforcement and legal contacts, criminal justice system, juror service, and miscellaneous. The parties' stipulation said the questionnaire "will not be filed and become a part of the Court's record in this matter. The proposed Jury Questionnaire shall be held strictly confidential, with the exception of distribution to Court personnel, attorneys-of-record for each of the parties and the parties." The district court approved the parties' stipulation, stating the "completed Jury Questionnaires shall not become part of the Court's file in this case. To the extent any completed Jury Questionnaires end up logged in the Court's file, the completed Jury Questionnaire(s) shall be sealed in an envelope and marked `Confidential' and only to be opened pursuant to the terms of a subsequent order of the Court." The jury questionnaire included the following statement by the court to prospective jurors:

Some of these questions call for personal information. If you feel any question invades your right to privacy or is embarrassing to you, you may simply write "confidential" in the space provided. The Court will then give you an opportunity to answer that question in a closed hearing with the Court, the accused, the attorneys and the court reporter. The Court will do everything legally possible to protect your privacy.

This questionnaire is part of the jury selection process and, therefore, you must answer the questions under penalty of perjury.

[¶ 4] The parties do not dispute that the voir dire proceedings during the Minot trial were closed to the public and the media. During the Minot trial, Gibbs' trial counsel petitioned for a disorderly conduct restraining order against a third party attending the trial, and a district court judge for the Northwest Judicial District issued a disorderly conduct restraining order against the third party, a Bismarck resident. The Minot jury ultimately deadlocked on a verdict in the criminal prosecution of Gibbs. The district court initially rescheduled a second trial in Grand Forks County "because of the extensive pretrial and trial publicity in Barnes County . . . and the extensive trial coverage in Ward County . . . including comments by jurors and juror editorials."

[¶ 5] The district court eventually rescheduled the trial for Bismarck in October 2007, and the court issued a scheduling order requiring each prospective juror to complete the 169 question juror questionnaire utilized in the first trial. Forum Communications moved to open courtroom proceedings, including voir dire, to the public, to unseal court documents, including the completed jury questionnaires, and to vacate the gag order. The court ordered that the public would be allowed access to jury voir dire, subject to closure whenever counsel believed sensitive subjects would be discussed with prospective jurors. The court also unsealed a copy of a blank juror questionnaire distributed to the prospective jurors and indicated it would preserve, rather than destroy completed juror questionnaires. The court further ordered "as much public access to courtroom proceedings as possible," but "reserve[d] ruling on public access to specific matters that may be taken up in motion hearings, bench or chamber conferences or other special proceedings until such matters arise." The court also left intact the order restricting extrajudicial comments. The parties do not dispute that during approximately five days of jury selection in Bismarck, the public and the media were allowed to attend voir dire, subject to some in camera proceedings, but the jurors were referred to by their first names and the initial of their last name. After a lengthy trial, the Bismarck jury returned a November 2007, verdict finding Gibbs guilty. Gibbs appealed to this Court, and his appeal is pending.

[¶ 6] In December 2007 and January 2008, Forum Communications asked by letter the district court to release the names of the jurors in the Bismarck trial. The district court issued the following order:

Because the Court gave its word to the jurors in the above entitled matter that it would protect those jurors' identity as confidential. And because the Court had previous harassment problems of jurors and counsel from a Bismarck man when the case was tried in Minot, North Dakota, in order to protect the jurors as much as possible, the Court now enters the following Order.

IT IS HEREBY ORDERED, that the Clerk of District Court is to seal the juror questionnaires and any other identifying information that would help identify the full names of the jurors that participated in the Bismarck, Burleigh County, North Dakota retrial of the above captioned matter.

IT IS FURTHER ORDERED, that the records will remain sealed until such time as any appeal, or any ordered retrial and appeal therefrom have been determined.

Forum Communications petitioned this Court to exercise its original jurisdiction and issue a supervisory writ reversing the district court's order sealing juror information.

II

[¶ 7] Forum Communication argues the law presumes court records, including the jurors' names and the completed juror questionnaires, are public. Forum Communications claims the district court's order sealing juror information is contrary to law and creates an injustice, and it has no adequate alternative remedy but to request a supervisory writ.

[¶ 8] In Roe v. Rothe-Seeger, 2000 ND 63, ¶ 5, 608 N.W.2d 289, this Court outlined standards for this Court's discretionary exercise of its original jurisdiction to issue supervisory writs in extraordinary cases in which there is no adequate alternative remedy:

Our authority to issue supervisory writs derives from N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04. Dimond v. State Bd. of Higher Educ., 1999 ND 228, ¶ 19, 603 N.W.2d 66. The authority to issue supervisory writs is discretionary; it cannot be invoked as a matter of right. Trinity Med. Ctr. v. Holum, 544 N.W.2d 148, 151 (N.D.1996); Odden v. O'Keefe, 450 N.W.2d 707, 708 (N.D. 1990). This Court determines whether it should exercise its original jurisdiction to issue remedial writs on a case-by-case basis. Heartview Found. v. Glaser, 361 N.W.2d 232, 234 (N.D.1985); Marmon v. Hodny, 287 N.W.2d 470, 474 (N.D.1980). Courts generally will not exercise supervisory jurisdiction "where the proper remedy is an appeal merely because the appeal may involve an increase of expenses or an inconvenient delay." Fibelstad v. Glaser, 497 N.W.2d 425, 429 (N.D.1993). We exercise our authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy. State ex rel. v. Hagerty, 1998 ND 122, ¶ 6, 580 N.W.2d 139.

[¶ 9] We conclude this is an appropriate case to exercise our original jurisdiction because this case involves issues of vital concern about the interrelationship of guidelines for public and media access to court records, for juror privacy, and for a criminal defendant's right to a fair trial, and because there is no adequate remedy by appeal to resolve those issues.

III

[¶ 10] Forum Communications argues the district court's decision is contrary to law and creates an injustice because the public and the media have a right of access to criminal proceedings, including juror information, under N.D. Sup.Ct. Admin. R. 41, and the state and federal constitutions. Forum Communications claims the district court did not identify an overriding interest for sealing the information, and the court made no findings to suggest there was an ongoing threat of harassment of the Bismarck jurors. Forum Communications contends the court did not consider reasonable alternatives, nor did it consider if the order was the least restrictive means of accomplishing an...