KFGO Radio, Inc. v. Rothe, 9764

• Decision Date: 03 November 1980
• Docket Number: No. 9764,9764
• Citation: 298 N.W.2d 505
• Parties: 6 Media L. Rep. 2217 KFGO RADIO, INC. and WDAY, Inc., Plaintiffs and Appellees, v. Cynthia ROTHE, in her official capacity as State's Attorney for Cass County, North Dakota and Robert Hoy, in his official capacity as Assistant State's Attorney for Cass County, North Dakota, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 505

298 N.W.2d 505

6 Media L. Rep. 2217

KFGO RADIO, INC. and WDAY, Inc., Plaintiffs and Appellees, v. Cynthia ROTHE, in her official capacity as State's Attorney for Cass County, North Dakota and Robert Hoy, in his official capacity as Assistant State's Attorney for Cass County, North Dakota, Defendants and Appellants.

Civ. No. 9764.

Supreme Court of North Dakota.

Nov. 3, 1980.

Robert G. Hoy, Asst. State's Atty., Fargo, for defendants and appellants.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for plaintiffs and appellees; argued by H. Patrick Weir, Fargo.

PAULSON, Justice.

Cynthia Rothe and Robert Hoy, the Cass County state's attorney and assistant Cass County state's attorney respectively, (hereafter referred to as the State) appeal from a judgment entered by the Cass County District Court on March 13, 1980, which permanently enjoined the State from denying access to any state's attorney's inquiry held pursuant to the provisions of § 11-16-15, N.D.C.C. The State also appeals from an order of the district court rendered on March 9, 1980, which denied the State's motion to vacate the injunction and denied the State's motion to dismiss. KFGO Radio, Inc. and WDAY, Inc. (hereafter referred to as the Media) cross-appeal from that part of the March 13, 1980, judgment which provided that the State had no affirmative obligation to publish, mail, or post notice of the pendency of state's attorney's inquiries. We affirm the judgment of the district court.

The parties to this action stipulated to the following facts:

"1. The plaintiff, KFGO Radio, Inc. and the plaintiff, WDAY, Inc. are both North Dakota corporations with their principal place of business in Fargo, Cass County, North Dakota. Plaintiff KFGO Radio, Inc. is licensed by the Federal Communications Commission to serve the public interest by broadcasting on radio from its facilities located in Fargo, North Dakota. The plaintiff WDAY, Inc. is licensed by the Federal Communications Commission to serve the public interest by broadcasting on both radio and television from its facilities in Fargo, North Dakota. In serving the public interest, both plaintiffs devote substantial time and effort to the collection and dissemination of local and regional news, including but not limited to reporting actions taken by courts, governmental bodies and their agencies.

"2. The defendant, Cynthia Rothe, is a duly elected States Attorney for Cass County, North Dakota, with full responsibility for the acts of Assistant States Attorneys under her supervision. The defendant, Robert Hoy, is a duly appointed Assistant States Attorney for Cass County, North Dakota.

"3. The plaintiffs requested that the defendants allow them to be present at a States Attorney's inquiry, pursuant to N.D.C.C. § 11-16-15 to be held on or about February 7, 1980, concerning the death of William Wolf, Jr.

"4. In response to the request, the defendants stated that the plaintiffs would not be allowed to attend the inquiry and that the inquiry would be closed.

"5. The defendants' continuing policy with respect to States Attorney's inquiry into the death of William Wolf, Jr., and future States Attorneys' inquiries, is to deny the press and general public access to said proceedings unless they are enjoined by an order of the Court."

The facts of this case revolve around the state's attorney's inquiry concerning the death of William Wolf, Jr. On February 1, 1980, Judge John O. Garaas of the Cass County District Court ordered that a witness answer questions posed to him in a state's attorney's inquiry to be held on February 7, 1980. The Media requested permission to attend the inquiry but the State denied the request. On February 7, 1980, the Media initiated this action. In their prayer for relief, the Media requested a restraining order, temporary injunction, and judgment for a permanent injunction to prevent the State from denying the Media access to a state's attorney's inquiry. The prayer for relief also requested that notice of all future state's attorney's inquiries be given as required by law.

The Cass County District Court issued a temporary restraining order and a temporary injunction pending a full hearing on the merits. On February 14, 1980, the district court heard arguments concerning the issuance of a permanent injunction and on February 21, 1980, the district court issued a memorandum opinion. The order for judgment was entered on March 9, 1980; on that same date the district court issued its order denying the state's motion to vacate the temporary injunction and the motion to dismiss the complaint for failure to state a claim. The judgment, dated March 13, 1980, provides as follows:

1. Defendants are permanently enjoined from denying the Plaintiffs or members of the general public from access to any State's Attorney's inquiry held pursuant to § 11-16-15, N.D.C.C., now or in the future.

2. Defendants have no affirmative obligation to the Plaintiffs to publish, mail, or post notice of pendency of proceedings brought pursuant to § 11-16-15, N.D.C.C.

Section 11-16-15, N.D.C.C., is silent on the issue of whether or not a state's attorney's inquiry is open to the public. Section 11-16-15, N.D.C.C., states as follows:

"11-16-15. Criminal act causing death-Felony-Inquiry-State's attorney may subpoena witnesses. If a state's attorney shall be notified by any officer or other person, or be cognizant himself of any violation or criminal act causing a death, or in any manner connected therewith, or have reason to believe a felony has been committed, he may, prior to a crime being charged, inquire into the facts of such violation or criminal act, and, with the consent and approval of the district judge of the county, for such purpose he may issue a subpoena for any person who he has reason to believe has any information or knowledge of such violation, to appear before him at a time and place designated in such subpoena, then and there to testify concerning any such violation. The subpoena shall be directed to the sheriff or any constable of the county and shall be served and returned to the state's attorney in the same manner as subpoenas are served and returned in criminal cases. Each witness shall be sworn by the state's attorney to testify under oath, and to make true answer to all questions which may be propounded to him by such state's attorney touching any such violation or criminal act. The testimony of every witness shall be reduced to writing, and shall become a part of the coroner's files in the case of a death and of the state's attorney's files in all other cases. For all purposes in this section the state's attorney may:

"1. Administer oaths or affirmations to all witnesses.

"2. Apply to the district court for the punishment of any witness for contempt for or on account of any disobedience of a subpoena, a refusal to be sworn, or to answer as a witness, or a refusal to sign his testimony.

"3. Compel the attendance of witnesses by attachment in the manner and with the effect provided in title 27. Any witness compelled to testify under the provisions of this section shall be entitled to counsel and all other constitutional rights."

Section 11-16-15, N.D.C.C., was originally enacted as Section 11-19A-09, which was adopted in 1955 as a part of the chapter concerning medical county coroners. See 1955 S.L., Ch. 115 § 9. Section 11-19A-09 remained in Chapter 11-19A (codified today as Chapter 11-19.1) until 1973 when it was repealed and reenacted as Section 11-16-15, N.D.C.C. See 1973 S.L., Ch. 92. On February 23, 1972, the Attorney General issued an opinion in which he asserted that the state's attorney's inquiry authorized under Section 11-19A-09 was open to the public. The Attorney General asserted the following reason for his conclusion:

"In the absence of any further description of a state's attorney's inquest, or statutory or constitutional provisions relating thereto, and because the inquest is authorized under Chapter 11-19A, concerning coroner's duties and functions, and in most instances the inquest is held in conjunction with the coroner's inquest, we are inclined to apply the principles of law pertaining to coroner's inquests to cover the state's attorney's inquest."

At another point in his opinion the attorney general stated:

"It should be noted that the testimony of every witness shall be reduced to writing and shall become a part of the coroner's files in such case. The last sentence in Section 11-19A-08 provides that 'All records of said office shall become and remain the property of the county, and shall be considered public records.' The foregoing provisions clearly indicate that the records of the coroner are considered public records."

The attorney general reasoned that the coroner's office was a governmental body and that the provisions of §§ 44-04-18 and 44-04-19, N.D.C.C., which relate to access to public records and open governmental meetings, applied to coroner's proceedings and to state's attorney's inquiries by virtue of the inclusion of § 11-19A-08 in Chapter 11-19A. The Attorney General also stated that in the instances where the legislature intended hearings or proceedings to be held which excluded the public it had provided for exclusion of the public by appropriate language. Because such language was not included in § 11-19A-08, N.D.C.C., the state's attorney's inquiry was open to the public.

The Attorney General's opinion served as the basis for the district court's memorandum opinion. However, the district court asserted several other grounds for granting the permanent injunction. Section 22 of the Constitution of North Dakota provides that "All courts shall be open ...." The district court reasoned that the above language, coupled with § 27-01-02, N.D.C.C., served as secondary authority for the district court's conclusion that state's attorney's inquiries were open to the public.

Two issues are presented for our determination....