In re Sealed Documents

• Decision Date: 23 March 2001
• Docket Number: No. 01-103.,01-103.
• Parties: In re SEALED DOCUMENTS.
• Court: Vermont Supreme Court

772 A.2d 518

In re SEALED DOCUMENTS.

No. 01-103.

Supreme Court of Vermont.

March 23, 2001.

Philip H. White and Kathleen B. O'Neill of Wilson & White, P.C., Montpelier, and Robert B. Hemley and Rebecca C. Raskin of Gravel & Shea, Burlington, for Appellants.

William H. Sorrell, Attorney General, and John Treadwell and Stephanie Ilberg, Assistant Attorneys General, Montpelier, for State of Vermont.

Philip T. McLaughlin, Attorney General, and N. William Delker, Senior Assistant Attorney General, Concord, New Hampshire, for State of New Hampshire.

Present: DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ., and GIBSON, J. (Ret.), Specially Assigned.

SKOGLUND, J.

Appellants the Associated Press, The Herald Association, d/b/a The Rutland Herald, Times Argus Association d/b/a The Times Argus, and Mt. Mansfield Television, Inc., d/b/a WCAX/WPTZ appeal from a district court order denying a motion to unseal ten search warrants and related materials involving searches of the persons and the residences of Robert Tulloch and James Parker in Chelsea, Vermont. Appellants contend they are entitled to examine the subject documents under Vermont statutory law—specifically 4 V.S.A. § 693 providing for public inspection and examination of court records—as well as under the common law, and the First Amendment. As explained more fully below, we conclude that appellants have a presumptive right of access under the statute, which may be overcome only through a specific showing of substantial harm to public or private interests. To afford the trial court a reasonable opportunity to render a decision supported by fact-specific findings under the standards and procedures described herein, we remand for further proceedings.

I.

The material facts are undisputed. On January 27, 2001, the police discovered the deceased bodies of Half and Susanne Zantop in their Hanover, New Hampshire home. Autopsies revealed that both deaths were homicides. The following day, a New Hampshire district court judge approved an application for a search warrant for the Zantop residence, and granted a motion to seal the warrant, warrant application, supporting affidavit, and motion.

Three weeks later, on February 16, the New Hampshire court issued arrest warrants for Robert Tulloch and James Parker, residents of Chelsea, Vermont, in connection with the homicides. On the same day, the Vermont Attorney General's Office applied for four search warrants, based upon information provided by New Hampshire law enforcement authorities, and simultaneously moved to seal the application, warrant, supporting affidavits, and inventory of items seized. The trial court (Judge Manley) issued the search warrants and granted the State's motion to seal. The warrants were executed and returned, together with inventories of items seized.

The following day, February 17, the Vermont Attorney General's Office applied for five additional search warrants, and moved to seal the warrant, supporting affidavits, and inventories. Judge Manley issued the warrants and granted the State's motion. The warrants were executed and returned, together with inventories of items seized.

On February 19, the two suspects, Parker and Tulloch, were arrested in Indiana. Both have since been returned to New Hampshire, where they remain incarcerated. Both have been charged with two counts of first-degree murder, although neither has yet been indicted by the grand jury.

On February 23, the New Hampshire district court issued an order requiring the release of certain previously sealed information in the New Hampshire arrest and search warrant applications. The court's ruling is pending on appeal.

On February 24, Judge Zimmerman (Judge Manley having become unavailable) granted the State's application for a tenth search warrant, as well as a motion to seal the warrant, affidavits, and inventory. A return and inventory for the tenth warrant had not been filed at the time of these proceedings.

This case commenced on February 23, when a reporter for The Times Argus moved for limited intervention in the Vermont proceeding in order to request access to the previously sealed search warrants and related materials. Additional motions for limited intervention to unseal the subject documents were later filed on behalf of the other appellants. At the expedited hearing on appellants' motion, the State advanced general arguments in favor of nondisclosure, asserting that the investigation was ongoing, as evidenced by the succession of search warrants, that evidence was still being gathered and analyzed, and that unsealing the records could jeopardize the discovery of additional evidence and allow potential witnesses to tailor their statements to the evidence.

Following the hearing, the trial court (Judge Zimmerman) issued a written order and decision. The court concluded: (1) the First Amendment does not provide a right of access to pre-indictment search warrant materials; (2) the search warrant materials are not public records under 4 V.S.A. § 693 because they do not relate to a "cause" in the district court, and are not "records of the court" subject to disclosure; and (3) although there is a qualified common-law right of access to judicial records, the State had demonstrated sufficient cause to retain the records under seal. The latter conclusion was based upon the court's finding that the public interest is not furthered through piecemeal dissemination of information that cannot be tested through the adversarial process, and that the materials relate to an ongoing investigation and reference a number of items of potential evidentiary value that have not been disclosed to the public, some of which are awaiting forensic evaluation. The trial court thus denied appellants' request to unseal the search warrants and related materials. This appeal followed.¹

We conclude as follows. The trial court's rejection of appellants' constitutional claim was amply supported. The great weight of authority holds that pre-indictment search warrant materials have not "historically been open to the press and general public," Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986), and therefore access is not compelled under the First Amendment. See, e.g., Seattle Times Co. v. Eberharter, 105 Wash.2d 144, 713 P.2d 710, 715 (1986) ("the deeply-rooted historical tradition and the role of public access in furthering the process itself ... are not present in the probable cause determination [for issuance of search warrants]"); see also In re 2 Sealed Search Warrants, 710 A.2d 202, 205-09 (Del.Super.Ct.1997) (collecting and discussing cases). Ample authority also supports the trial court's decision to apply a qualified "common law" right of access, see, e.g., Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir.1989), although some have questioned the logic of finding such a right absent an historically rooted basis for such a claim. See, e.g., Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir.1989) (refusing to recognize common-law right of access to pre-indictment search warrant materials "when there is neither a history of access nor an important public need justifying access").

We need not ultimately resolve either the First Amendment or common law issues at this time, however. We conclude, instead, that Vermont statutory law provides a general right of access to the materials subject to recognized exceptions under the law. Our tradition of addressing issues of constitutional significance only when the matter is squarely and necessarily presented counsels restraint and forebearance as to the broader questions of access on these alternative grounds. See In re Newsday, Inc., 895 F.2d 74, 75 (2d Cir.1990) (declining to address First Amendment claim where qualified access to search warrant materials available under common-law theory); Herald Ass'n v. Ellison, 138 Vt. 529, 533, 419 A.2d 323, 326 (1980) (noting the "wisdom of our traditional rule of self-restraint—that we do not needlessly decide constitutional issues").

II.

In pertinent part, 4 V.S.A. § 693 provides that the district court clerk

shall keep on file and preserve all process, pleadings and papers relating to causes in the district court which, together with the records of the court, shall be subject to inspection and examination by parties interested in those causes and, upon tender of the legal fees, he shall furnish, or cause to be furnished, duly certified copies of any records, pleadings, process or papers; except that he shall not disclose any materials or information required by law to be kept confidential.

Our decisions have made it clear that § 693 does not merely describe the record-keeping duties of the clerk of the court, but rather provides an affirmative right of public access to court records. As we explained in State v. Tallman, 148 Vt. 465, 537 A.2d 422 (1987), which addressed a newspaper's motion to unseal an affidavit of probable cause, "[a]fter an affidavit is reviewed by a court, access to the document is governed by 4 V.S.A. § 693." Id. at 472, 537 A.2d at 426 (emphasis added); see also Herald Ass'n v. Judicial Conduct Bd., 149 Vt. 233, 241, 544 A.2d 596, 601 (1988) (Tallman "held that the district court statute gave the public a right of access to affidavits of probable cause in criminal cases").²

The threshold inquiry is thus whether the search warrant materials are covered by § 693 and therefore subject to public inspection absent any other requirement "by law" that they be kept confidential.³ The statute applies to "all process, pleadings and papers relating to causes in the district court ..., together with the records of the court." The statute does not specifically define "cause" or "records of the court." In construing these terms, we are guided by the usual rules of construction, which are designed to discern the legislative intent primarily by reference to the plain and ordinary meaning of...