Petition of Daily Item
| Decision Date | 11 February 1983 |
| Citation | 310 Pa.Super. 222,456 A.2d 580 |
| Parties | Re Petition of the DAILY ITEM Appeal of DAILY ITEM, William C. Saylor. |
| Court | Pennsylvania Superior Court |
Leonard R. Apfelbaum, Sunbury, for appellant.
Charles J. Ax, Jr., Middleburg, for participating party.
Before BROSKY, McEWEN and BECK, JJ.
On December 20, 1979, a preliminary hearing was held before a District Justice to determine whether Robert E. Dock should be tried on criminal homicide charges. The District Justice denied the public access to the hearing and refused to provide the press with a copy of the hearing transcript. Appellant then filed a Petition with the lower court seeking access to a record of the proceedings. The court upheld the District Justice's exclusion of the public from the hearing and denial of transcript.
During the oral arguments presented to us, we were informed that the trial in this case has already been concluded. Normally, we would treat appellant's appeal as moot and dismiss it. However, we may decide cases with substantial questions, otherwise moot, which are capable of repetition unless settled. See McKeesport Area School District v. Collins, 55 Pa.Cmwlth. 548, 423 A.2d 1112 (1980), Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 59, 373 A.2d 748, 750 (1977). Finding this situation to be one likely to recur, we will address the merits of the appeal. We reverse.
The lower court explained its denial of the petition in an opinion which concluded as follows:
In these circumstances, it is clear that the hearing before the District Justice to which petitioner sought admission and for which it requests a transcript was in part a preliminary or prefatory stage of the criminal justice proceedings to which it had no constitutional guarantee of admission, thus no constitutional right to the transcript. (Page 10 of Opinion.)
We are unable to state, as the lower court has, that the public has no right of access to preliminary proceedings.
In Gannett Company, Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the Supreme Court was faced with the question of whether members of the public have an independent constitutional right to insist upon access to a pretrial judicial proceeding. The court held that no such right is given by the Sixth or Fourteenth Amendments, but reserved decision as to whether it is found in the First Amendment. The Court did say, however, that even if such a right does exist, there are circumstances in which it is outweighed by a defendant's right to a fair trial. The court found the closure of the courtroom by the trial court to be permissible because
... the closure decision was based "on an assessment of the competing societal interests involved ... rather than on any determination that First Amendment freedoms were not implicated." Id. at 393, 99 S.Ct. at 2912. 1 In contrast, the trial court in the present case held that First Amendment freedoms were not implicated because a preliminary hearing is not a trial to which the right of access attaches.
Similarly, appellee argues that the Pennsylvania Constitution's provision that "all courts shall be open" found in Art. 1 § 11, does not apply to this case because the District Justice proceeding is not a court proceeding. We do not agree. When the proceedings before a District Justice are criminal in nature, as was this hearing, they are treated as court proceedings. See 18 Pa.C.S.A. § 103. 2
In Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980), the Pennsylvania Supreme Court held that closure of a pretrial proceeding may not be ordered where some other procedural device can fully protect the defendant's right to a fair trial. In Hayes, the proceeding in question was a pretrial suppression hearing scheduled to be held immediately prior to trial.
In reaching its decision, the court discussed the Gannett case at great length concluding that while Gannett does not decide whether there is a constitutionally based right of access to pretrial proceedings, that decision does provide justification for limiting the use of closure. The Court wrote:
It is thus readily apparent that where a less restrictive alternative is available for assuring the fair trial guarantee and the use of that alternative does not unduly burden the expeditious disposition of the cause, all of the views expressed by the members of the Gannett Court would have no serious disagreement with a requirement that the alternative procedure should be opted for in preference to closure. Id. at 426, 414 A.2d at 321.
Our Supreme Court then found that under the facts of the Hayes case, a less restrictive alternative was available. All parties had agreed that since the suppression hearing was to immediately precede the trial, sequestration of jurors would protect the defendant's right to a fair trial.
Unlike the Hayes court, we cannot determine on the record before us, whether closure was justified. What we have determined, however, is that the trial court erred in failing to consider the public's right of access to this proceeding.
The Hayes court indicated that whether that right is of constitutional dimension was not critical to its decision. See Hayes, supra, 489 Pa. at 425, 414 A.2d at 321. In fact, the court did not state whether the right it enforced was based on either the Federal or Pennsylvania Constitution. It did, though, find such a right as to pretrial proceedings.
Certainly, the facts of the present appeal are different than those of Hayes. The preliminary hearing, held to determine whether the defendant should be tried at all, is not held immediately before trial. Sequestration of jurors would not provide an effective alternative means. It may well be that there was no other way to protect the defendant's right to a fair trial, but the question should have been considered.
Order reversed.
This case originated when the press was excluded from a preliminary hearing on a homicide charge. The defendant requested that the press and public be excluded. The presiding District Magistrate consented and closed the proceedings. Appellant newspaper petitioned the lower court for an order opening the proceedings and granting access to transcripts. 1 Its petition was denied and the newspaper appeals.
The trial of the criminal case involved has now been concluded and the record of all proceedings has been filed of public record. It is well established that an appeal may be taken from such a closure order even when the proceedings from which the public was excluded are completed, and transcripts made available. A controversy is not moot Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911) and Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975). Those conditions are met in this case.
This case, presenting the question of whether the public and press have a right of access to criminal preliminary hearings independently of the defendant himself, is one of first impression in this court.
I agree with the majority and would hold that the public and the press have a limited right of access to this adjudicative criminal proceeding which the court below failed to consider. I write this concurring opinion to explain fully my reasoning.
The right is based on the Pennsylvania Constitution and the Constitution of the United States. As to the Pennsylvania Constitution, the right is founded on portions of the Declaration of Rights which is Article One of the Pennsylvania Constitution. Two sections of Article One are implicated: section 11 which refers to open courts and section 7 which refers to free press and examination of public proceedings. 2 As to the United States Constitution, the right is supported by the First Amendment.
The court below recognized a public right of access to a criminal trial but declined to find the same right to a preliminary hearing. I disagree. The history, purposes, and function of the preliminary hearing place that proceeding squarely within the ambit of the criminal adjudicatory process subject to the American judicial tradition of openness.
Press access to preliminary hearings has not been specifically addressed by the Commonwealth's appellate courts or by the Courts in the Third Circuit or the United States Supreme Court.
Both the Pennsylvania and the United States Supreme Courts have thus far recognized a public right of access to criminal trials and to pretrial suppression hearings although not to preliminary hearings. Globe Newspaper Co. v. Superior Court for the County of Norfolk, 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); Gannett Co., Inc. v. DePasquale; Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980), cert. denied, Hayes v. Pennsylvania, 449 U.S. 992, 101 S.Ct. 528, 66 L.Ed.2d 289 (1980); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877. Pennsylvania case law does not provide a clear basis for the conclusion that the public has a right to access to preliminary hearings. Indeed even where it has found existence of a right of access in the context of suppression hearings there has been no agreement as to the foundation for that right. See Commonwealth v. Hayes; ...
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