Oregonian Pub. Co. v. O'Leary

• Decision Date: 28 April 1987
• Citation: 736 P.2d 173,303 Or. 297
• Parties: , 55 USLW 2640, 14 Media L. Rep. 1019 OREGONIAN PUBLISHING COMPANY, an Oregon corporation, and Joan Laatz, individually and on behalf of a class consisting of all residents of Oregon, Petitioners on Review, v. James W. O'LEARY, in his official capacity as District Attorney for Clackamas County, Defendant, Charles A. Sams, in his official capacity as Judge of the Circuit Court for the Fifth Judicial District, and the State of Oregon, Respondents on Review. TC 85-1-108; CA A36591; SC S33348.
• Court: Oregon Supreme Court

Page 173

736 P.2d 173

303 Or. 297, 55 USLW 2640, 14 Media

L. Rep. 1019

OREGONIAN PUBLISHING COMPANY, an Oregon corporation, and Joan Laatz, individually and on behalf of a class consisting of all residents of Oregon Petitioners on Review, v. James W. O'LEARY, in his official capacity as District Attorney for Clackamas County, Defendant Charles A. Sams, in his official capacity as Judge of the Circuit Court for the Fifth Judicial District, and the State of Oregon, Respondents on Review.

TC 85-1-108; CA A36591; SC S33348.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 20, 1987.

Decided April 28, 1987.

Charles F. Hinkle, Portland, argued the cause for petitioners on review. With him on the petition were E. Walter [303 Or. 298-A] Van Valkenburg and Stoel, Rives, Boley, Fraser & Wyse, Portland.

Kendall M. Barnes, Asst. Atty. Gen., Salem, argued the cause for respondents on review. With him on the memorandum response were Dave Frohnmayer, Atty. Gen., Virginia Linder, Sol. Gen., and David Schuman, Asst. Atty. Gen., Salem.

Marc D. Blackman, Portland, filed a brief amicus curiae on behalf of ACLU Foundation of Oregon, Inc. With him on the brief was Ransom, Blackman & Simson, Portland.

LENT, Justice.

The plaintiffs seek a declaration that the closed hearing provision of ORS 136.617 violates Article I, section 10, of the Oregon Constitution and the First and Fourteenth Amendments to the United States Constitution. ¹ The circuit court and the Court of Appeals held that the provision was consistent with both constitutions. Oregonian Publishing Co. v. O'Leary, 80 Or.App. 754, 724 P.2d 822 (1986). We hold that it violates Article I, section 10, of the Oregon Constitution and reverse.

I.

Plaintiff Oregonian Publishing Co. publishes The Oregonian, a daily newspaper based in Portland and widely distributed throughout Oregon. A reporter for The Oregonian, plaintiff Laatz, covered a Clackamas County murder trial over which the defendant judge presided. During the trial a witness called by the prosecution refused to testify on the ground that his testimony would be self-incriminating. The prosecutor moved the court for an order compelling the witness to testify, and, as required by ORS 136.617, the judge immediately held a summary hearing on the motion. Laatz requested permission to attend the hearing, but the judge excluded her and other members of the public, relying on the following portion of ORS 136.617: "The court shall hold the summary hearing outside the presence of the jury and the public * * *."

The plaintiffs filed this action for a declaratory judgment that the judge's closure of the courtroom, and the closed hearing provision of ORS 136.617 on which he relied in doing so, violated Article I, section 10, of the Oregon Constitution and the First and Fourteenth Amendments to the United States Constitution. ² Named as defendants were the judge, the State of Oregon and James O'Leary, the District Attorney for Clackamas County. The circuit court granted motions to dismiss by the judge and O'Leary, but denied a similar motion by the state. On the merits, the court granted the state's motion for summary judgment.

The plaintiffs appealed, assigning as error the circuit court's failure to declare the closed hearing provision of ORS 136.617 unconstitutional and the court's dismissal of their claims against the judge. The Court of Appeals held that the statute was constitutional and affirmed. For that reason, the Court of Appeals found it unnecessary to decide whether the claims against the judge were properly dismissed. 80 Or.App. at 756 n. 1, 724 P.2d 822. The plaintiffs petitioned for review, urging that we reverse the Court of Appeals and remand the case to that court for a determination of the plaintiffs' remaining assignment of error and their request for attorney fees.

II.

Article I, section 10, of the Oregon Constitution provides:

"No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation." (Emphasis added.)

Section 10 thus mandates "not only honest and complete and timely justice, but justice that can be seen to be so during and after the event." State ex rel Oregonian Pub. Co. v. Deiz, 289 Or. 277, 286, 613 P.2d 23 (1980) (Linde, J., concurring). ³ Moreover, the command that "[n]o court shall be secret" is not a statement of an individual right that may be waived or compromised by the individual. Deiz, 289 Or. at 282-83, 613 P.2d 23. Members of the media and public may benefit from, and assert in court in their own behalf, the prohibition of section 10 on secret courts, but the prohibition is not a right that is personal to themselves. Rather, it "is one of those provisions of the constitution that prescribe how the functions of government shall be conducted." Deiz, 289 Or. at 288, 613 P.2d 23 (Linde, J., concurring).

Section 10 is written in absolute terms; there are no explicit qualifications to its command that justice shall be administered openly. In order to be constitutional, a proceeding must either not be secret or not "administer justice" within the meaning of section 10.

There can be little doubt that an ORS 136.617 hearing is "secret" within the meaning of section 10 and that it must be so under the terms of the statute. Once a witness has refused to testify on the ground of self-incrimination and the prosecutor has moved to compel the witness to testify, the statute provides that "[t]he court shall hold the summary hearing outside the presence of * * * the public." (Emphasis added.) There are no circumstances, including the consent of the parties and the witness, under which the court could permit the public to be present at the hearing. Nor can the constitutional requirement of openness be satisfied by making a hearing transcript publicly available at some time after the hearing, as the judge apparently did in this case. ⁴ The command of section 10 would be ill-served by a practice in which the public had to rely on the court itself to learn in what manner justice was administered. Moreover, because many court proceedings are of immediate public importance, an after-the-fact account will rarely be an adequate substitute for contemporaneous knowledge. ⁵

The question before us, then, is whether an ORS 136.617 hearing is an administration of justice within the meaning of section 10. Although section 10 is written in absolute terms, not every proceeding involving the administration of justice, in the general sense of that term, need be open to the public. See Deiz, 289 Or. at 284, 613 P.2d 23.

The primary limitation on the scope of section 10 is that it is directed only at adjudications. To the extent that adjudications are not involved, the administration of justice is not governed by it. Section 10, for example, does not require that police investigations of crime, although a part of the administration of justice, be open to public scrutiny. In addition, this court has noted that judicial proceedings that were closed to the public by well-established tradition at the time of the adoption of the Oregon Constitution may be exceptions to section 10. Deiz, 289 Or. at 284, 613 P.2d 23 (jury deliberations and collegial court conferences are historical exceptions to the command of section 10 that justice be administered openly).

We are not persuaded, however, that an ORS 136.617 hearing is a proceeding that falls outside the scope of section 10. The fundamental function of courts is to determine legal rights based upon a presentation of evidence and argument. At an ORS 136.617 hearing, the prosecution must show "reasonable cause to believe the witness possesses knowledge relevant to the proceeding, or that no privilege protects the evidence sought to be produced." The witness may be heard in opposition. Additionally, even if the prosecution makes the necessary showing, the court may refuse to compel the witness to testify if it "finds that to do so would be clearly contrary to the public interest." Whether a witness will be compelled to testify has an important effect on any trial, and the immunity that follows as a consequence of compelling testimony, see ORS 136.619, may be of greater concern than the trial itself. The reasons for opening trials to public scrutiny would appear to be equally applicable to an ORS 136.617 hearing.

The Court of Appeals, taking its cue from this court's opinion in Deiz, suggested that section 10 was inapplicable because an ORS 136.617 hearing is an in camera hearing, and such hearings traditionally have been closed to the public. See 80 Or.App. at 761, 724 P.2d 822. We have not been made aware, however, of any well-established tradition in 1859 to close the sort of hearing mandated by ORS 136.617. It is not enough to observe that in camera hearings traditionally have been closed to the public. Such hearings are closed by definition, not tradition.

Moreover, tradition, in and of itself, is never dispositive. A well-established tradition of exclusion from a particular proceeding is simply evidence that the framers of the Oregon Constitution did not intend to treat that proceeding as an administration of justice within the meaning of section 10. Even if there were a tradition of excluding the public from hearings such as that required by ORS 136.617, the tradition would be meaningless without the further conclusion that the framers intended the tradition to persist in the face of the constitutional command of section 10. Cf. Deiz, 289 Or. at 283-84, 613 P.2d 23 (contemporaneous legislative enactments should not necessarily be given much weight when construing constitutional provisions). We have been presented with no reason to believe that they did so.

The Court of Appeals also based its decision on its conclusion that "the public's right to open courts only...