Iowa Freedom of Information Council v. Wifvat

Decision Date19 January 1983
Docket NumberNo. 67221,67221
Citation328 N.W.2d 920
Parties9 Media L. Rep. 1194 IOWA FREEDOM OF INFORMATION COUNCIL and the Des Moines Register and Tribune Company, Plaintiffs, v. Honorable Van WIFVAT, Judge of the Fifth Judicial District of Iowa, Defendant.
CourtIowa Supreme Court

Barbara M. Mack and Michael A. Giudicessi, Des Moines, for plaintiffs.

Raymond Rosenberg of Rosenberg & Margulies, Des Moines, for defendant.

Considered en banc.

UHLENHOPP, Justice.

In this certiorari proceeding we consider a district court order closing a pretrial suppression hearing and sealing the transcript until completion of trial.

Bradley J. Mather was charged with two counts of first-degree murder following the deaths of two youths in a West Des Moines motel fire allegedly set by Mather. Robert E. Davis, media coordinator for the Fifth Judicial District of Iowa, applied for expanded media coverage of Mather's trial. Mather resisted the application. At a pretrial suppression hearing, Mather moved to close the hearing to the public and press, and to seal the transcript until completion of trial. Mather argued that closure was necessary to insure him his constitutional right to a fair trial. He reasoned that if certain subjects to be considered at the hearing were made known to the public, but were determined at the hearing to be inadmissible at trial, he could not receive a fair trial by an impartial jury. He pointed to the pretrial publicity his arrest had already generated. The prosecutor agreed that considerable pretrial publicity had occurred and stated he did not resist the closure motion.

Attorney Michael A. Giudicessi then asked to speak on behalf of the Iowa Freedom of Information Council (council) and The Des Moines Register and Tribune Company (Register). The council consists of a group of publishers and broadcasters throughout the state. Giudicessi asserted constitutional grounds in resisting Mather's motion to close the hearing. He claimed that all court proceedings should be open to public scrutiny to preserve the integrity of the judicial system and to avoid the suppression of evidence of police misconduct and any other impingement on a defendant's rights. While Giudicessi agreed that considerable pretrial publicity had occurred, he argued that publicity in and of itself would not result in a denial of Mather's right to a fair trial. He suggested alternatives to closure--change of venue, delay of trial date, and effective voir dire--that could protect Mather's rights.

The district court granted Mather's motion to close the hearing and did so on the authority of Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). After hearing, the court also denied the council's application for expanded media coverage. Plaintiffs council and Register then petitioned this court for a writ of certiorari. We granted a writ in order to provide guidelines for closure motions, but we did not stay the criminal prosecution in district court, which went forward. After briefs had been submitted in this court, plaintiffs dismissed the part of this proceeding pertaining to expanded media coverage. We are left, therefore, with the sole issue of whether a criminal defendant, unopposed by the prosecution, can have a pretrial suppression hearing closed to the public and press.

I. Initially we consider two preliminary questions. One of them relates to the nature of a writ of certiorari. Rule 306 of the Iowa rules of civil procedure states:

A writ of certiorari shall only be granted ... where an inferior tribunal ... is alleged to have exceeded its ... proper jurisdiction or otherwise acted illegally.

See State v. West, 320 N.W.2d 570, 573 (Iowa 1982); In re Marriage of Welsher, 274 N.W.2d 369, 371 (Iowa 1979). Illegality exists within the meaning of this rule when the findings on which the tribunal based its conclusions of law do not have substantial evidentiary support. Fetters v. Degnan, 250 N.W.2d 25, 27 (Iowa 1977); Cedar Rapids Human Rights Comm'n v. Cedar Rapids Community School District, 222 N.W.2d 391, 401 (Iowa 1974). Illegality also exists when the tribunal did not apply the proper rule of law. Hightower v. Peterson, 235 N.W.2d 313, 317 (Iowa 1975). Our review by certiorari is not de novo, but where violations of basic constitutional safeguards are involved we make our own evaluation of the facts from the totality of the circumstances. Hightower at 317.

The other preliminary issue relates to mootness. Because we denied a stay, the pretrial suppression hearing was held without the public and press present, the case was tried, and Mather was acquitted.

Generally we will not consider an action if it no longer presents a justiciable controversy. Hamilton v. City of Urbandale, 291 N.W.2d 15, 17 (Iowa 1980). But claims should not be dismissed on mootness grounds where matters of public importance are presented and the problem is likely to recur. City of Des Moines v. Public Employment Relations Board, 275 N.W.2d 753, 758 (1979). The United States Supreme Court has found cases of this type not moot where (1) the challenged action was in its duration too short to be fully appealed prior to its cessation or expiration and (2) a reasonable expectation existed that the same complaining party would be subjected to a similar action. Gannett Co., Inc. v. DePasquele, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608, 620 (1979) (challenge to lower court order closing a pretrial hearing when trial itself was over); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, 316 (1911) ("capable of repetition, yet evading review"). See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973, 981 (1980) ("[I]t is reasonably foreseeable that other trials may be closed by other judges...."). We proceed therefore to the merits, even though our decision will have no practical effect on the criminal case.

II. Involved is the tension between a criminal defendant's sixth amendment right to fair trial and the first amendment right of access to judicial proceedings of the public and press. Gannett found the public and press had no sixth amendment right which prevented a criminal defendant from obtaining closure of a pretrial hearing. 443 U.S. at 391, 99 S.Ct. at 2911, 61 L.Ed.2d at 628. But in Richmond, the Court found the public and press possess a first amendment right to attend criminal trials. 448 U.S. at 581, 100 S.Ct. at 2829, 65 L.Ed.2d at 992. Gannett involved five opinions by members of the Court, and Richmond involved seven opinions. At this time we do not find clear-cut guidance on the question of first amendment rights of access of the public and press to pretrial hearings.

Our common law has long favored open judicial proceedings:

The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet.... Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.

In Re Oliver, 333 U.S. 257, 268-70, 68 S.Ct. 499, 505-06, 92 L.Ed. 682, 691-92 (1948). The Court stated in Richmond:

The historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. This is no quirk of history; rather, it has long been recognized as an indispensable attribute of an Anglo-American trial. Both Hale in the 17th Century and Blackstone in the 18th saw the importance of openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants and decisions based on secret bias or partiality.

448 U.S. at 569, 100 S.Ct. at 2823, 65 L.Ed.2d 984. Our society has less difficulty accepting that which it observes than that which it is not permitted to observe. "When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case...." Id. at 572, 100 S.Ct. at 2825, 65 L.Ed.2d 986.

Although the Gannett Court permitted a closed hearing, it stated:

There can be no blinking the fact that there is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.

443 U.S. at 383, 99 S.Ct. at 2907, 61 L.Ed.2d at 623. Our own court has recognized the same advantages in public trials. State v. Lawrence, 167 N.W.2d 912, 914 (Iowa 1969). See also State v. Rasmus, 249 Iowa 1084, 1087, 90 N.W.2d 429, 430 (1958) ("We deem it proper to suggest that the practice of disposing of an indictment, ... upon which a trial was then in progress, in the seclusion of the judge's chambers is not to be commended."); Iowa Code § 605.16 (1981) ("All judicial proceedings must be public, unless otherwise specifically provided by statute or agreed upon by the parties.").

III. Under English common law, the public did not have a right to attend pretrial proceedings. Gannett, 443 U.S. at 389, 99 S.Ct. at 2910, 61 L.Ed.2d at 627. Our modern suppression hearings, however, are creatures unknown to traditional common law; they resemble trials in many respects. Evidence is presented by live testimony; witnesses are sworn and subject to cross-examination; and the ultimate issue of trial admissibility may depend on the fact finder's evaluation of the...

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