Great Falls Tribune v. District Court of Eighth Judicial Dist.

• Decision Date: 19 March 1980
• Docket Number: No. 79-93,79-93
• Citation: 186 Mont. 433,608 P.2d 116,37 St.Rep. 502
• Parties: The GREAT FALLS TRIBUNE, a corporation, Petitioner, v. The DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT of the State of Montana et al., Respondents.
• Court: Montana Supreme Court

Page 116

608 P.2d 116

186 Mont. 433

The GREAT FALLS TRIBUNE, a corporation, Petitioner, v. The DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT of the State of Montana et al., Respondents.

No. 79-93.

Supreme Court of Montana.

Submitted Jan. 17, 1980.

Decided March 19, 1980.

Swanberg, Koby, Swanberg & Matteucci, Randall Swanberg (argued), Great Falls, for petitioner.

J. Fred Bourdeau, Robert J. Vermillion (argued), Judge H. William Coder (argued), Daniel V. Donovan (argued), James A. Lewis (argued), Great Falls, for respondents.

HASWELL, Chief Justice.

The question before this Court is whether the District Court's order closing to the press and public the individual voir dire examination of prospective jurors in a criminal case should be affirmed under the circumstances of this case. Our order of January 18, 1980, vacated the closure and directed the press and public be permitted to attend the voir dire examination with a written opinion to follow. This opinion constitutes the reasons for our decision.

Gene Andrew Austad was charged with two counts of deliberate homicide, robbery, sexual intercourse without consent, and aggravated burglary allegedly committed on April 21, 1978.

His preliminary hearing could not be held until September 18, 1978, because of injuries he sustained in an accident following the crimes with which he was charged. Shortly after the alleged and as yet undiscovered crimes with which he was later charged, Austad was stopped by Great Falls police for a traffic violation, fled the scene of the traffic stop, and a high speed chase ensued culminating in a wreck in which he was severely injured. Following the wreck, authorities discovered evidence of the commission of other offenses which led to the discovery of the body of Mabel Wald, age 69, the victim of the crimes of which Austad was charged.

Following the preliminary hearing, Austad was bound over to the District Court of Cascade County. On October 18, 1978, the District Court denied his motion for an order controlling alleged prejudicial publicity.

Austad was arraigned on December 27, remained silent, and a not guilty plea to all charges was entered in his behalf.

In February, 1979, Austad was released from the hospital. His bail was reduced permitting him to be taken to the home of his parents to be given the personal care required by his condition.

On May 31 the defendant filed a motion for change of place of trial. On June 1 he moved for sequestration of prospective jurors during voir dire examination and during trial. On June 4 defendant moved for individual voir dire examination of prospective jurors.

On August 24 following a psychiatric and medical examination of defendant to determine his fitness to proceed, an in camera hearing was held by the District Court in its chambers to determine defendant's fitness to proceed to trial, his ability to assist and communicate with his counsel, and the extent to which the State's evidence could be reconstructed.

On October 2 the District Court found that defendant's physical condition made it possible for him to proceed to trial with certain limitations and set a trial date of November 20.

On October 15 defendant moved to close pretrial proceedings.

On November 1, following a hearing closed to the press and public, the District Court entered orders denying defendant's motion to dismiss for prosecutorial misconduct and granting defendant's motion to close pretrial proceedings calendared for October 29 to the press and public.

The trial was continued to December 3 at which time an initial panel of 50 prospective jurors were sworn. At the commencement of voir dire examination, the District Court directed that the individual voir dire examination of prospective jurors be closed to the press and public.

On December 14, the Great Falls Tribune filed an original proceeding in this Court seeking a writ of supervisory control (1) directing the presiding judge to permit a Tribune reporter to attend and observe the voir dire examination of prospective jurors, and (2) directing the presiding judge to hold a hearing and thereafter issue findings of fact and conclusions of law showing that defendant's right to a fair trial was jeopardized.

On the same date this Court issued an order directing the presiding judge to hold a hearing and submit to us his findings and conclusions concerning his reasons for closing the voir dire examination to the press and public and staying further proceedings in jury selection.

On January 10, 1980 following hearing, the presiding judge filed his findings, conclusions and order closing the voir dire examination to the press and public. In summary, the presiding judge concluded that such closure was required to ensure the right of the defendant to a speedy public trial by an impartial jury in Cascade County. The closure was based upon findings of substantial prejudicial publicity, misstatements of fact, disclosure of defendant's prior criminal record, and disclosure of evidence not generally known to the public originating in part from the prosecution and police appearing in the Tribune. The presiding judge examined certain alternatives to closure sequestration of prospective jurors, change of venue, and continuance of trial to a later date and rejected each for various reasons.

Defendant filed a motion to dismiss this proceeding which we denied. Briefs were filed by defendant, the State and the Tribune. Oral argument was heard on January 18. Thereafter this Court entered an order vacating the closure with a full written opinion to follow as time permitted.

We do not have a transcript of the District Court hearing as time would not permit its preparation prior to hearing. However, we do have 92 exhibits filed by the Tribune and defendant relating to press coverage including news items in the Tribune, letters to the editor printed in the Tribune, and scripts of radio-television broadcasts. They cover the time period from April 23, 1978 to December 14, 1979. In short, they depict a murder in which a 29 year old defendant is alleged to have raped a 69 year old victim, cut her throat, and stuck a knife in her chest; his fleeing from police in an automobile chase at speeds up to 89 miles per hour after being stopped for a routine traffic investigation; and reporting subsequent events in the criminal prosecution with republication of events leading to defendant's arrest and the charges filed.

At the outset we observe the existence of a common law rule of open civil and criminal proceedings in the courts of this country. Gannett Co., Inc. v. DePasquale (1979), 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 and authorities cited therein. The public and the press have "traditionally had access to criminal proceedings and history supports the notion that public trials are the norm." Rapid City Journal Company v. Circuit Court (1979), S.D., 283 N.W.2d 563; Gannett v. DePasquale, supra, and cases cited therein.

We additionally note that the United States Supreme Court has ruled that the Federal Constitution does not require that a pretrial hearing on a motion to suppress evidence be open to the public and that the press has no federal constitutional right of access to such a proceeding. Gannett Co. v. DePasquale, supra.

However, the situation is considerably different under the Constitution of this State. Article II, Section 9 of the 1972 Montana Constitution provides:

"Section 9. Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure." (Emphasis added.)

The language of this provision speaks for itself. It applies to all persons and all public bodies of the state and its subdivisions without exception. Under such circumstances, it is our duty to interpret the intent of the framers from the language of the provision alone and not to resort to extrinsic aids or rules of construction in determining the intent of the delegates to the Constitutional Convention. Keller v. Smith (1976), 170 Mont. 399, 404, 553 P.2d 1002; Cashmore v. Anderson (1972), 160 Mont. 175, 500 P.2d 921, cert. den. 410 U.S. 931, 93 S.Ct. 1372, 35 L.Ed.2d 593; Vaughn & Ragsdale Co. v. State Board of Equal. (1932), 109 Mont. 52, 96 P.2d 420; Sections 1-2-102 and 1-4-103, MCA. Art. II, Sec. 9 clearly provides that any person has the constitutional right to observe court proceedings unless the demand of individual privacy clearly exceeds the merits of public disclosure.

The merits of public access to criminal proceedings are many and substantial. It protects the accused from "secret inquisitional techniques" and unjust persecution by public officials and "goes far toward insuring him the fair trial to which he is entitled." Westchester Rockland Newspapers v. Leggett (1979), 48 N.Y.2d 430, 423 N.Y.S.2d 630, 399 N.E.2d 518, and cases cited therein. It promotes justice for the accuser as well the police and prosecutors who must enforce the law and the victims of crime who suffer when the law is not enforced fairly, impartially and vigorously. Westchester Rockland Newspaper, supra. Open public proceedings have long been recognized as a cornerstone in preserving the quality and integrity of the judicial process. Rapid City Journal Co. v. Circuit Court, supra. Closure of judicial proceedings breeds suspicion and mistrust in the minds of the public and representatives of the media. Such closure is simply censorship at the source a denial of the right to know. Frequently it is counterproductive; it focuses public attention on the accused and the crime by generating publicity which neither would otherwise merit.

However, this right of access or right to know is not absolute. Our Montana Constitution provides an exception in cases where the demand of individual privacy...