Minneapolis Star and Tribune Co. v. Kammeyer

• Decision Date: 28 November 1983
• Docket Number: No. C9-83-819,C9-83-819
• Citation: 341 N.W.2d 550
• Parties: MINNEAPOLIS STAR AND TRIBUNE COMPANY, Petitioner, v. Honorable Daniel KAMMEYER, Respondent, Craig Swanson, Respondent, State of Minnesota, Respondent.
• Court: Minnesota Supreme Court

Page 550

341 N.W.2d 550

MINNEAPOLIS STAR AND TRIBUNE COMPANY, Petitioner, v. Honorable Daniel KAMMEYER, Respondent Craig Swanson, Respondent State of Minnesota, Respondent.

No. C9-83-819.

Supreme Court of Minnesota.

Nov. 28, 1983.

Syllabus by the Court

This is an action on a petition for a writ of mandamus. The District Court of Sherburne County closed a pretrial hearing in a criminal case because of possible prejudice to defendant. The Minneapolis Star and Tribune Company filed a petition for a writ of mandamus which would require the district court to make public a transcript of the closed hearing and an order relating to the hearing. This court holds that:

1. The public is entitled to a minimal hearing prior to closure of pretrial hearings in criminal matters.

2. Minn.R.Crim.P. 25.01 governs orders restricting access to transcripts and orders developed in closed pretrial hearings.

3. Minn.R.Crim.P. 25.01 requires that orders closing pretrial hearings to the public must be supported by findings of fact and a review of alternatives to closure.

4. The different standards in Minn.R.Crim.P. 25.01 and 25.03 are proper in light of the different issues those rules address.

Patricia A. Hirl, Minneapolis, for petitioner.

John F. MacGibbon, Sherburne County Atty., Elk River, for respondents.

Michael Vitt, Minneapolis, for amicus curiae Society of Professional Journalists, Sigma Delta Chi (MN. Chapt.).

C. Paul Jones, State Public Defender and Michael F. Cromett, Kathy King and Mark F. Anderson, Asst. State Public Defenders, Minneapolis, amici curiae.

Oppenheimer, Wolff, Foster, Shepard & Donnelly, Paul R. Hannah and Paula D. Osborn, St. Paul, for amici curiae Northwest Publications, Inc., WCCO-TV, Inc., WTCN Television.

Considered and decided by the court en banc.

YETKA, Justice.

Petitioner Minneapolis Star and Tribune Company is before the court seeking review of District Judge Daniel Kammeyer's order closing a pretrial hearing to the press and public. This court stayed disposition of the petition pending briefing of five specified issues.

On November 18, 1982, Craig Swanson drove his car off the road in Elk River, Minnesota, and killed two teenage girls. He was charged with criminal negligence, and his case became the subject of wide media coverage. On May 19, 1983, venue was changed based on the finding that "dissemination of potentially prejudicial material created a reasonable likelihood that a fair trial cannot be had in the County of Sherburne."

Judge Daniel Kammeyer was assigned to the case on May 25. He was the fourth trial judge to deal with the matter. The hearing which is the subject of this petition was called by Judge Kammeyer on June 2, 1983, "to cover some administrative matters" and to hear defendant's motions to suppress evidence and to change venue. The hearing was conducted in Judge Kammeyer's chambers and the public was excluded. Sometime after the hearing started, Judge Kammeyer stated that he was ordering it closed to the public under the authority of Minn.R.Crim.P. 25.01 and the case of Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), because he found that a public hearing was likely to interfere with the defendant's right to a fair trial.

After ordering the hearing closed, Judge Kammeyer asked that one of petitioner's reporters, who was waiting in the courtroom, be advised of his order. The reporter came into the judge's chambers to inquire why the hearing was closed and to state on the record his attorney's objection to closure. Judge Kammeyer rebuffed further attempts by the reporter and counsel to discuss his closure order.

The closed hearing continued with a lengthy discussion off the record. (The matters discussed were summarized on the record.) When the attorneys left the judge's chambers at the close of the hearing, the reporter asked for a copy of the order closing the hearing, but was not given one. Both attorneys refused to be interviewed by the reporter, saying that Judge Kammeyer had made an order restricting their comments to the media.

On June 6, 1983, the Minneapolis Star and Tribune Company filed its petition with this court for review of the closure order and for a writ of mandamus commanding Judge Kammeyer to release all closed documents and rescind his order silencing counsel.

On June 8, 1983, the district court entered two orders. One, designated "Pre-Trial Order" (hereafter "closed order"), set out in detail the matters discussed at the closed hearing, including the fact that defendant had been convicted three or four times for driving while intoxicated and that the parties had engaged in plea negotiations.

The second order was designated "Order and Memorandum [Public Document]" (hereafter "public order"). That order stated that the hearing of June 2, 1983, was closed to the public, that the "closed" order was to be issued only to the attorneys for the parties and to the Minnesota Supreme Court, and that a hearing was set for June 9, 1983, to determine whether public access to the closed order was controlled by Rule 25.01 (dealing with closure of pretrial hearings) or Rule 25.03 (dealing with closure of public records) of the Minnesota Rules of Criminal Procedure. The public order also directed counsel not to make any extrajudicial statements relating to the case for dissemination by any means of public communication during its pendency.

At the June 9, 1983, hearing, counsel for the Minneapolis Star and Tribune appeared and argued that the "clear and present danger of prejudice" standard of Rule 25.03 should govern public access to the closed order, not the "substantial likelihood of prejudice" standard of Rule 25.01. She stated that a clear and present danger had not been demonstrated in this case and suggested that the court consider alternatives to closure such as voir dire, change of venue, and voluntary cooperation by the media. The court also heard arguments from counsel for the state and defendant requesting that portions of the closed order remain closed while others be made public.

At the close of the hearing, the trial court accepted defendant's suggestion that only four paragraphs of the closed order be restricted and made the balance of that order a public document. It ruled that the closed parts of the order were governed by Rule 25.01 and did not have to be made public until the case was disposed of. In the alternative, if the more rigorous standard of Rule 25.03 was applicable, that standard was met with regard to the four paragraphs of the order that remained closed. The court stated, without giving its reasons, that the alternatives to closure suggested by petitioner's counsel would not be adequate to prevent prejudice to the defendant. Finally, the court rescinded that part of its public order restricting counsel's right to give statements about the case to the media.

On June 20, 1983, this court ordered that disposition of the petition for review be stayed pending submission of briefs addressing five specific issues. By subsequent orders, amici curiae --the state public defender, Sigma Delta Chi, and Northwest Publications, et al.--were also permitted to file briefs.

Following completion of defendant Swanson's trial, transcripts of the June 2 pretrial hearing and closed portions of the June 8 order were released to the public. Petitioner immediately published the fact of Swanson's prior DWI convictions on the front page of its newspaper.

The issues this court instructed the parties to address are:

1. Whether the trial court erred in refusing to provide the public or its media representatives with an opportunity to be heard prior to closing the pretrial hearing 2. Whether the order issued to counsel constituted a restrictive order and, if so, whether such an order was appropriate;

3. Whether the "substantial likelihood" standard of Minn.R.Crim.P. 25.01 or the standards contained in Minn.R.Crim.P. 25.03, subd. 3 govern the issuance of the restrictive order preventing access to records and orders developed in a closed pretrial hearing;

4. Whether the trial court abused its discretion in excluding the public from the pretrial hearing and in restricting access to portions of the record issued after the closed pretrial hearing; and

5. Whether the provisions of Rules 25.01 and 25.03 achieve a proper balance between the public and media's First Amendment right to access and the defendant's Fifth Amendment due process right and Sixth Amendment right to a fair and impartial trial by jury.

Pertinent to this case are the First and Sixth amendments to the United States Constitution, article 1, sections 3 and 6 of the Minnesota Constitution and Minn.R.Crim.P. 25.01 and 25.03. Each of these is set forth verbatim in the appendix to this opinion.

What we have here is another classic example of a direct conflict between the freedom of the press and the right of every defendant to a fair and impartial trial. A strong argument is made that not only the trial itself, but also oral preliminary hearings and motions should be open to the press and to the public. However, it is extremely doubtful that the decisions of the United States Supreme Court would permit such broad access. Likewise, there is little chance that the procedure adopted in Great Britain, which vests enormous power in the trial bench to prevent publication of any part of a criminal proceeding under threat of contempt, would be sanctioned. See Gillmor, Free Press and Fair Trial, ch. 12 (1966). Thus, in the United States, our courts have been struggling with a middle course which will guarantee a fair trial and protect what may be the most liberal access by the press and the public that exists in the entire world.

The specific issue of the public's constitutional right of access to pretrial proceedings in criminal cases has not been settled by the U.S. Supreme Court. However, three recent cases provide a framework for our analysis of the...