Herald Ass'n, Inc. v. Ellison

• Citation: 419 A.2d 323,138 Vt. 529
• Decision Date: 29 July 1980
• Docket Number: No. 34-80,34-80
• Parties: , 6 Media L. Rep. 1638 HERALD ASSOCIATION, INC. and McClure Newspapers, Inc. v. Honorable George F. ELLISON and Rutland Superior Court.
• Court: Vermont Supreme Court

Page 323

419 A.2d 323

138 Vt. 529, 6 Media L. Rep. 1638

HERALD ASSOCIATION, INC. and McClure Newspapers, Inc. v. Honorable George F. ELLISON and Rutland Superior Court.

No. 34-80.

Supreme Court of Vermont.

July 29, 1980.

Gravel, Shea & Wright, Ltd., Robert B. Hemley, Burlington (On the Memorandum), for petitioners.

Miller, Norton & Cleary, Rutland, for respondent Morgan.

Before BARNEY, C. J., DALEY, BILLINGS and HILL, JJ., and VALENTE, Superior Judge, Specially Assigned.

BARNEY, Chief Justice.

This petition for extraordinary relief arises from the exclusion of the news media and the general public from a pretrial hearing in State v. Bernard R. Morgan, Jr., Docket No. S3-79Rcr. The case prompted considerable press attention, presumably because the defendant was accused of assaulting an assistant judge of the Rutland Superior Court. The defendant moved to suppress certain statements alleged to have been made in violation of his constitutional rights. He also moved for closure of the suppression hearing on the ground that, should the statements be ruled inadmissible, widespread public knowledge of their contents would jeopardize his right to a fair trial. The prosecutor did not join in the motion, but did not oppose it.

At the time of the motion, an intern reporter for the Herald Association, a petitioner here, was present and voiced opposition to the proposed closure. The court entered a closure order and heard, in camera, the first witness in the suppression hearing. It then recessed the hearing to a later date. Before the suppression hearing was resumed, the Herald Association and McClure Newspapers petitioned to vacate the closure order.

The court refused to vacate its order, ultimately held the rest of the suppression hearing in camera, and directed that the transcript of the hearing be sealed until after a jury for trial was empaneled.

So matters stood when the instant petition was filed in this Court. The records in the Morgan case, of which we take judicial notice, see Weiner v. Prudential Insurance Co. of America, 110 Vt. 22, 27, 1 A.2d 708, 710 (1938), reveal that, since that time, the suppression motion has been denied, the defendant has elected not to stand trial and has entered a plea and been sentenced. This has had the presumably unintended effect of precluding the very event which was to have triggered public access to the substance of the hearing in the form of release of the transcript on empanelment of a jury.

Although events have, on this occasion, outrun the full range of possible relief, the petitioners by seeking extraordinary relief have employed a proper legal vehicle for review of the order in question. V.R.A.P. 21. See In re Rhodes, 131 Vt. 308, 310, 305 A.2d 591, 592 (1973); Miner v. District Court, 136 Vt. 426, 428-29, 392 A.2d 390, 392 (1978). While such collateral proceedings are appropriate, we do not countenance any implication that nonparties can without authority in law be allowed any legal status within a pending criminal prosecution.

This petition brings before us the complex and unsettled fair trial-free press issues so recently addressed by the United States Supreme Court in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), and in Richmond Newspapers, Inc. v. Virginia, --- U.S. ----, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). The Gannett majority reiterated that adverse publicity may endanger a defendant's right to a fair trial. Gannett Co. v. DePasquale, supra, 443 at 378-79, 99 S.Ct. at 2905. It indicated that the Sixth Amendment right to a public trial is personal to the accused, id. at 379-87, 99 S.Ct. at 2905-2909 and that, in any case, such a right would not confer a right of access to pretrial proceedings. Id. at 387-91, 99 S.Ct. at 2909-2911. Finally the majority expressly reserved the question whether the First and Fourteenth Amendments conferred on the public a right of access to criminal proceedings and held that even if such a right did exist, it did not prohibit the pretrial closure at issue because the trial court struck a proper balance between such a right and the defendant's right to a fair trial. Id. at 391-93, 99 S.Ct. at 2911-2913.

We begin our analysis of this case with the simple proposition that Gannett does not authoritatively sanction this closure order. As we noted above, it does not appear that the superior court intended that this order become a permanent bar. By its terms, the transcript was to be open after jury drawing was completed. Yet the criminal prosecution of Bernard Morgan has been completed and the transcript remains sealed. Intent aside, it appears that the effect of the order is now permanent in nature. We must measure its validity based on its actual, not its intended, impact.

The permanent nature of this order distinguishes it in a critical aspect from the relief approved in Gannett. There, in determining that the trial court properly balanced the defendant's rights against any First Amendment right of access in the public, Justice Stewart rested on the temporary nature of the closure order involved:

Furthermore, any denial of access in this case was not absolute but only temporary. Once the danger of prejudice had dissipated, a transcript of the suppression hearing was made available. The press and the public then had a full opportunity to scrutinize the suppression hearing. Unlike the case of an absolute ban on access, therefore, the press here had the opportunity to inform the public of the details of the pretrial hearing accurately and completely. Under these circumstances, any First and Fourteenth Amendment right of the petitioner to attend a criminal trial was not violated.

Id. at 393, 99 S.Ct. at 2912 (footnote omitted). In this respect this order, in its present form, presents a different and deeper challenge to the First Amendment interests at stake.

Because of the fragmentation of the Court and because of the reservation of the First Amendment issue, Gannett left the fair trial-free press controversy almost as unsettled as it found it. Richmond Newspapers, supra, provides some additional guidance. It held that there is a First Amendment right to attend criminal trials. Id. --- U.S. at ----, 100 S.Ct. at 2829. While the decision does not expressly determine whether any such right of access applies to pretrial hearings, it would seem fair to infer that it does. On the other hand, mere recognition of a First Amendment right of access to judicial proceedings does not demand that this order be vacated. Even as to trials, the right to recognize is not an absolute one, id. at ---- n.18, 100 S.Ct. at 2830, n.18, but rather a right to be weighed against other interests. Id. at ---- & n.18, ----, 100 S.Ct. at 2830 & n.18, 2834 (Brennan, J., concurring) ("An assertion of the prerogative to gather information must accordingly be assayed by considering the information sought and the opposing interests invaded."). Moreover, the interests supporting closure have greater force as to pretrial hearings than as to trials because of the need, among other concerns, to prevent the "dissemination of suppressible prejudicial evidence to the public before the jury pool has become, in a practical sense, finite and subject to sequestration." Id. at ---- n.25, 100 S.Ct. at 2839 n.25 (Brennan, J., concurring).

Our case then, while similar to both Gannett and Richmond Newspapers, lies between the two holdings. It seems that the First Amendment is implicated by this order, but the decisions of the final constitutional arbiter, the United States Supreme Court, do not clearly determine whether this closure violates the First Amendment.

In the face of such uncertainty, the wisdom of our traditional rule of self-restraint-that we do not needlessly decide constitutional issues, e. g., In re Wildlife Wonderland, Inc., 133 Vt. 507, 519-20, 346 A.2d 645, 653 (1975); State v. LaPlaca, 126 Vt. 171, 176, 224 A.2d 911, 915 (1966); Hanley v. United Steel Workers of America, 119 Vt. 187, 193, 122 A.2d 872, 876 (1956),-is all the more apparent. We would not wish to inadvertently infringe upon any right of access nor deny any defendant the full measure of his right to a fair trial. Of course, given a case in which a determination of the issues presented demands that this Court decide such questions, it would be our duty to do so. But this is not such a case.

Leaving aside for the moment constitutional concerns, we note that in this state public judicial proceedings are the rule and closed ones the exception. See Sunday v. Stratton Corp., 136 Vt. 293, 305-06, 390 A.2d 398, 405 (1978). Where closed proceedings have occurred they have ordinarily had specific statutory authorization. E. g., 12 V.S.A. § 1901 (obscene or scandalous causes); 33 V.S.A. § 651(c) (juvenile proceedings); 13 V.S.A. § 5131 (criminal inquests).

Because the undetermined scope of constitutional rights is implicated and because our own state policy of open judicial proceedings is thereby contravened, any pretrial closure order imposed in this jurisdiction must be based on a clear necessity for the protection of the defendant's fair trial rights and must be limited in scope by its justification. A trial court facing a closure motion must therefore consider and make use of the numerous procedural devices with which a defendant's right to a fair trial can be protected without ordering a closure. They include "continuance, severance, change of venue, change of venire, voir dire, peremptory challenges, sequestration, and admonition of the jury." Gannett, supra, 443 U.S. at 441, 99 S.Ct. at 2937 (Blackmun, J., concurring in part and dissenting in part) (citing ABA Project on Standards for Criminal Justice, Fair Trial and Free Press, Standard 8-3.2, at 16 (App.Draft 1978); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 562-65, 96 S.Ct. 2791, 2804, 49 L.Ed.2d 683 (1976); and Sheppard v. Maxwell, 384 U.S. 333, 354 n.9, 358-62, 86 S.Ct. 1507, 1518 n.9,...