Midland Pub. Co., Inc., In re

Decision Date09 January 1985
Docket NumberNo. 4,Docket No. 68862,4
Parties, 11 Media L. Rep. 1337 In re MIDLAND PUBLISHING COMPANY, INC., a Delaware Corporation, MIDLAND PUBLISHING COMPANY, INC., a Delaware corporation, Plaintiff-Appellant, v. DISTRICT COURT JUDGE, 75TH JUDICIAL DISTRICT, Defendant-Appellee. Calendar
CourtMichigan Supreme Court

Law Offices of Herbert H. Edwards, P.C. by Herbert H. Edwards, Midland, for plaintiff-appellant.

Doyle A. Rowland, Midland, for defendant-appellee.

CAVANAGH, Justice.

Defendant, pursuant to M.C.L. Sec. 750.520k; M.S.A. Sec. 28.788(11), issued suppression orders in two criminal cases. Upon plaintiff's complaint for an order of superintending control, the circuit court found the statute constitutional, thereby dismissing plaintiff's complaint, and the Court of Appeals affirmed. 1 We granted leave to appeal in order to determine whether M.C.L. Sec. 750.520k; M.S.A. Sec. 28.788(11) is constitutional.

I. Facts

On July 21, 1980, complaints and arrest warrants for three persons were issued in two unrelated matters involving alleged first-degree criminal sexual conduct with child victims. The arrests were effected and, on July 23, 1980, defendant, pursuant to M.C.L. Sec. 750.520k; M.S.A. Sec. 28.788(11), entered suppression orders in the two cases. 2 That same day, plaintiff, which publishes the only daily newspaper in Midland County, The Midland Daily News, filed a complaint for an order of superintending control in the circuit court alleging that: (1) it knew the identities of the three persons and some of the details of the alleged offenses, (2) its information was obtained from sources other than the district court's files, and (3) the suppression orders constituted an unconstitutional prior restraint on publication. Accordingly, plaintiff sought: (1) to enjoin defendant from continuing the two suppression orders and from entering similar orders in the future, (2) to have the suppression orders vacated, and (3) to have M.C.L. Sec. 750.520k; M.S.A. Sec. 28.788(11) declared unconstitutional. 3 Thereafter, on July 24, 1980, the circuit court issued an order to the defendant to show cause why an order of superintending control vacating the suppression orders should not issue. A hearing was held on August 4, 1980, and the circuit court issued its opinion the next day.

In its opinion, the circuit court found: (1) that M.C.L. Sec. 750.520k; M.S.A. Sec. 28.788(11) did not constitute a prior restraint, i.e., it did not and could not prohibit plaintiff from publishing information which it had concerning the two criminal matters, 4 and (2) that neither the public nor the press possessed federal or state constitutional rights of access to probable cause proceedings. 5 Accordingly, the circuit court ordered that plaintiff's complaint be dismissed, and the Court of Appeals affirmed that dismissal.

The Court of Appeals majority found: (1) that there was no prior restraint violative of U.S. Const., Ams. I, XIV or Const. 1963, art. 1, Sec. 5; (2) that the public does not have constitutional rights, under U.S. Const. Ams. I, VI or Const. 1963, art. 1, Sec. 20, of access to pretrial proceedings; and (3) that there is no constitutional right to inspect public records, but only a common-law right which the Legislature may restrict. In re Midland Publishing Co., Inc., 113 Mich.App. 55, 57-64, 317 N.W.2d 284 (1982). Conversely, the dissent would have held: (1) that U.S. Const., Am. VI and Const. 1963, art. 1, Sec. 20 require public criminal trials; (2) that it was unnecessary to decide whether the statute constituted an unconstitutional prior restraint; (3) because the preliminary examination is part of the trial, i.e., it must be open to the public; and (4) thus, the statute was unconstitutional.

We granted leave to appeal on June 28, 1983. 6

II. Issues

In this Court, plaintiff continues to claim that M.C.L. Sec. 750.520k; M.S.A. Sec. 28.788(11) is an unconstitutional prior restraint on publication, even as interpreted by the circuit court and the Court of Appeals, and abridges constitutional rights of access to pretrial proceedings. 7

A. Prior Restraint

M.C.L. Sec. 750.520k; M.S.A. Sec. 28.788(11) provides:

"Upon the request of the counsel or the victim or actor in a prosecution under sections 520b or 520g the magistrate before whom any person is brought on a charge of having committed an offense under sections 520b to 520g shall order that the names of the victim and actor and details of the alleged offense be suppressed until such time as the actor is arraigned on the information, the charge is dismissed, or the case is otherwise concluded, whichever occurs first."

Sections 520b to 520g codify various types of criminal sexual conduct and the attendant penalties. M.C.L. Secs. 750.520b-750.520g; M.S.A. Secs. 28.788(2)-28.788(7).

The Court of Appeals majority found that:

"Freedom of speech and of the press are guaranteed by federal and state constitutional provisions. US Const, Ams I, XIV; Const 1963, art 1, Sec. 5. As prior restraints on publication are the most serious and least tolerable infringement of First Amendment rights, the party seeking to justify a prior restraint must overcome a heavy presumption of unconstitutionality. Near v. Minnesota ex rel Olson, 283 US 697; 51 S Ct 625; 75 L Ed 1357 (1931), Nebraska Press Ass'n v Stuart, 427 US 539; 96 S Ct 2791; 49 L Ed 2d 683 (1976).

"In WXYZ, Inc v Hand, 463 F Supp 1070 (ED Mich, 1979) [aff'd 658 F2d 420 (CA 6, 1981) ], the federal court held that orders issued pursuant to the statute at issue here were void as prior restraints. However, in that case the defendant district judge announced that his suppression orders applied to news media personnel as well as to others, and would have taken steps to determine if the news commentators involved were in contempt of court if the federal action had not intervened. To the contrary, in the instant case, the circuit judge held:

" 'If Sec. 520k were construed as the publisher fears, it would certainly constitute a prior restraint upon a publication and would, in this court's opinion, be clearly in violation of the First Amendment rights of the complainant. An examination of the statute, however, discloses no express authorization to the 'magistrate before whom any person is brought' to enforce the suppression order authorized by the section against persons not party to the proceedings, nor served with a copy of the order.

" 'The suppression of names and details concerning pending litigation is not new to the jurisprudence of the State of Michigan. Whether the practice is commendable or not, it has existed since long prior to this century. See Jan Schmedding v County Clerk of Wayne County, 85 Mich 1 (1891). A suppression order, as the term is commonly understood in the State of Michigan, contemplates only a direction to the court personnel to prevent public disclosure of the official files. The terms of the statute make it clear that the statutory suppression order would also require the closing of the preliminary examination to the public and the press, since the first event upon which the termination of this suppression order is conditioned is the arraignment on the information, unless the case is concluded without bind-over to the circuit court.

" 'So construed, the statute does not constitute a restraint against publication, since it contemplates no sanctions against non-parties publishing information, no matter how acquired. It is a fundamental rule of statutory interpretation that where two constructions are possible, one constitutional and one unconstitutional, the constitutional construction should be adopted. The judges of the 75th Judicial District have, through their attorney, claimed no power to gag or discipline the press, and have, in fact, acknowledged that the statute confers no such power upon them.'

"We agree with the circuit judge's construction of the statute. So construed, the statute poses no prior restraint problem. See Gannett Co v DePasquale, 443 US 368, 393, fn 25; 99 S Ct 2898 [2912, fn 25]; 61 L Ed 2d 608 (1979):

" 'This Court's decision in Nebraska Press Ass'n v Stuart, 427 US 539 [96 S Ct 2791; 49 L Ed 2d 683 (1976) ], is of no assistance to the petitioners in this case. The Nebraska Press case involved a direct prior restraint imposed by a trial judge on the members of the press, prohibiting them from disseminating information about a criminal trial. Since "it has been generally, if not universally, considered that it is the chief purpose of the [First Amendment's] guaranty to prevent previous restraints upon publication," Near v. Minnesota ex rel Olson, 283 US 697, 713 [51 S Ct 625, 630; 75 L Ed 1357 (1931) ], the Court held that the order violated the constitutional guarantee of a free press. See also Oklahoma Publishing Co v. District Court, 430 US 308 [97 S Ct 1045; 51 L Ed 2d 355 (1977) ]. The exclusion order in the present case, by contrast, did not prevent the petitioner from publishing any information in its possession. The proper inquiry therefore, is whether the petitioner was denied any constitutional right of access.' " Midland Publishing Co., supra, 113 Mich.App. pp. 58-60, 317 N.W.2d 284.

We endorse the analysis of the Court of Appeals majority. Obviously, the statute so interpreted does not by any stretch of the imagination constitute an unlawful prior restraint on publication by plaintiff. 8 Indeed, as is clearly implied by the term, a prior restraint is "that [which] prohibit[s] the publication or broadcast of particular information or commentary * * * that [which] impose[s] a 'previous' or 'prior' restraint on speech". Nebraska Press Ass'n v. Stuart, supra, 427 U.S. p. 556, 96 S.Ct. p. 2801. However, the statute, by its explicit terms, imposes no restraints on any person. Rather, for an event-terminable time, it directs that the "names of the victim 9 and...

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