Kearns-Tribune Corp., Publisher of Salt Lake Tribune v. Lewis

• Decision Date: 01 May 1984
• Docket Number: KEARNS-TRIBUNE,No. 19612,19612
• Parties: 10 Media L. Rep. 1737 CORPORATION, PUBLISHER OF the SALT LAKE TRIBUNE, Petitioner, v. Honorable Eleanor S. LEWIS, Circuit Court Judge, Respondent.
• Court: Utah Supreme Court

Page 515

685 P.2d 515

10 Media L. Rep. 1737

KEARNS-TRIBUNE CORPORATION, PUBLISHER OF the SALT LAKE TRIBUNE, Petitioner, v. Honorable Eleanor S. LEWIS, Circuit Court Judge, Respondent.

No. 19612.

Supreme Court of Utah.

May 1, 1984.

D. Miles Holman, Salt Lake City, for petitioner.

David L. Wilkinson, Atty. Gen., Ted Cannon, County Atty., Carvel Harward, Brooke Wells, Connie Mower and Suzan Pixton, Salt Lake City, for respondent.

OAKS, Justice.

This case concerns the circumstances under which a judge can exclude the public and the press from the preliminary hearing in a criminal case.

I. FACTS AND CHALLENGED ORDER

Three defendants were charged with aggravated kidnapping, aggravated sexual assault, and aggravated exploitation of prostitution against two females, one age 17. The defense and the prosecution joined in a motion to close the preliminary hearing to the public. Respondent Lewis, a judge of the circuit court, held a hearing on that motion on November 23, 1983, the day scheduled for the preliminary hearing. Petitioner, the publisher of a daily newspaper, had been notified of the hearing and was represented there by counsel.

The proponents of closure relied on Utah Code of Criminal Procedure, Rule 7(d)(2), U.C.A., 1953, § 77-35-7(d)(2), which provides that on the request of either party at a preliminary examination "the magistrate may order all spectators to be excluded from the courtroom." The prosecution and the defense urged closure to assure that defendants could have a fair trial before a jury whose impartiality had not been jeopardized by pretrial publicity in a "high profile" case. The prosecutor also referred in passing to an interest "in the privacy and the well being of the victims." In opposing closure, petitioner relied on the press's constitutional rights, as "the surrogate of the public," to "be present and observe the workings of the judicial branch of the government." While conceding that such hearings could be closed "as a last resort," petitioner maintained that this could only be done where the circumstances met a three-pronged test, mentioned below (Part IVA). No evidence was proffered or received at the hearing. There were no representations that any evidence to be presented at the preliminary hearing would be subject to a motion to suppress or would otherwise be inadmissible at trial.

At the conclusion of arguments on the motion, the court stated that she would not close the courtroom if this were a trial, but this was only a preliminary hearing. The court then concluded: "The nature of the offense, as well as balancing the interest of the victims and the defendants, who are merely charged at this juncture, persuades this Court that this courtroom should be closed, and that will be the order of the Court." No other findings or conclusions were indicated at this time. The court then denied petitioner's motion to stay the preliminary hearing while it appealed the order of closure. The judge cleared the courtroom and went forward with the preliminary hearing. The 17-year-old victim testified. At the conclusion of the hearing, the defendants were bound over to the district court.

Petitioner immediately came to this Court with a complaint and petition for an extraordinary writ, seeking to vacate the order of closure and to stay the preliminary hearing pending decision. We denied the stay on November 23, but called for briefs on the merits, together with the record (including the findings of the court). The circuit court signed formal findings of fact on December 5, but through "clerical oversight" they were not filed of record until January 20, 1984, two weeks after petitioner's brief was filed.

II. MOOTNESS AND STANDING

Even though the preliminary hearing has been concluded, this appeal is not moot for the reasons stated in KUTV, Inc. v. Conder, Utah, 668 P.2d 513, 516-17 (1983). This case involves a question of considerable public interest that will recur and yet will evade review unless we apply an exception to the mootness doctrine. In addition, petitioner clearly has standing to contest the closure. Id. at 517.

III. THE CONSTITUTIONAL RIGHT OF ACCESS

While it is settled that the public has a right of access to criminal trials, id. at 517; KUTV, Inc. v. Conder, Utah, 635 P.2d 412 (1981), we have not clarified whether a preliminary hearing can be closed, and if so, what rules and procedures govern the closure.

The threshold question is whether either the federal or the state constitution gives the public (including the media) any constitutional right to attend a preliminary hearing, subject of course to appropriate exceptions. Petitioner asserts such a constitutional right. Respondent denies it, contending that the right to attend a preliminary hearing is subject to limitation by the Legislature without constitutional restraint. In this instance, the Legislature, acting through Rule 7(d)(2), has committed that decision to the discretion of the magistrate.

A. United States Constitution

The United States Supreme Court has now recognized that the First Amendment to the United States Constitution gives the public, including the media, a right of access to a criminal trial, subject only to narrowly tailored exceptions tied to a compelling state interest. Press-Enterprise Co. v. Superior Court, --- U.S. ----, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). The principal reason for finding this right in the First Amendment is to promote an informed discussion of government affairs, including those conducted in the courts.

Underlying the First Amendment right of access to criminal trials is the common understanding that "a major purpose of that Amendment was to protect the free discussion of governmental affairs," Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966). By offering such protection, the First Amendment serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government.... Thus to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that this constitutionally protected "discussion of governmental affairs" is an informed one.

Globe Newspaper Co. v. Superior Court, 457 U.S. at 604-05, 102 S.Ct. at 2619. Another reason cited for the First Amendment right of access is to ensure the fairness of the criminal trial.

The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.

Press-Enterprise Co. v. Superior Court, --- U.S. at ----, 104 S.Ct. at 823.

The consequence of recognizing the First Amendment right of access to criminal trials is explained in the Supreme Court's most recent decision:

Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.... The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id., 464 U.S. at ----, 104 S.Ct. at 824 (emphasis added).

The question before us in this case is whether the rationale the Supreme Court gave in finding a First Amendment right of access to criminal trials applies to preliminary hearings. The Supreme Court has never resolved that question. The closest decision on its facts is Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), which held, by a 5-4 majority, that on the facts of that case there was no constitutional violation in excluding the public and the press from a pretrial motion to suppress. The Court held, first, that the Sixth Amendment gave no constitutional right of access to the public. Second, even if the First Amendment gave a right of access it was "outweighed" by the defendant's right to a fair trial in that case, since there was a "reasonable probability of prejudice" if the transcript of a hearing whose purpose was to screen out unreliable or illegally obtained evidence was made public in advance of the trial. Id. at 392-93, 99 S.Ct. at 2911-12.

There are a host of appellate court decisions applying the principles of the foregoing cases to a variety of different pretrial hearings, including those involving suppression or admissibility of evidence, voir dire of potential jurors, fixing of bail, and determinations of probable cause (preliminary hearings). ¹ Because we believe the issue should turn on the precise nature of the proceeding in question, we limit our review to cases involving preliminary hearings.

In the period since Richmond Newspapers and Globe Newspaper, three state appellate courts have decided that the new First Amendment right of public access applies to preliminary hearings. All held that the public and the media cannot be excluded from a preliminary hearing without findings of fact on the circumstances that outweigh the constitutional right. State v. Williams, 93 N.J. 39, 459 A.2d 641 (1983); Petition of Daily Item, 310 Pa.Super.Ct. 222, 456 A.2d 580 (1983). A similar decision, which covers but is not limited to preliminary hearings, is Minneapolis Star and Tribune Co. v. Kammeyer, Minn., 341 N.W.2d 550 (1983). An earlier decision to the same effect is Star Journal Publishing Corp. v. County Court, 197...