Press-Enterprise Co. v. Superior Court

• Decision Date: 31 December 1984
• Docket Number: PRESS-ENTERPRISE
• Citation: 691 P.2d 1026,209 Cal.Rptr. 360,37 Cal.3d 772
• Parties: , 691 P.2d 1026, 53 USLW 2361, 11 Media L. Rep. [PG1297 COMPANY, Petitioner, v. The SUPERIOR COURT of Riverside County, Respondent; Robert Rubane DIAZ, Real Party in Interest. L.A. 31876.
• Court: California Supreme Court

Page 360

209 Cal.Rptr. 360

37 Cal.3d 772, 691 P.2d 1026, 53 USLW 2361, 11 Media L. Rep. [PG1297

PRESS-ENTERPRISE COMPANY, Petitioner, v. The SUPERIOR COURT of Riverside County, Respondent;

Robert Rubane DIAZ, Real Party in Interest.

L.A. 31876.

Supreme Court of California,

In Bank.

Dec. 31, 1984.

Thompson & Colegate, James D. Ward and Sharon J. Waters, Riverside, for Petitioner.

Edward J. McIntyre, Marilyn L. Huff, John Allcock, Gray, Cary, Ames & Frye, San Diego, Harold W. Fuson, Jr., Los Angeles, and Douglas T. Foster, Charity Kenyon, Diepenbrock, Wulff, Plant & Hannegan, Sacramento, Edward P. Davis, Jr., and Rankin, Oneal, Center, Luckhardt, Lund & Hinshaw, San Jose, as amici curiae on behalf of petitioner.

Michael B. Lewis, Public Defender, and John J. Lee, Deputy Public Defender, for real party in interest.

Diane C. Campbell, Ephraim Margolin and Sandra Coliver, San Francisco, as amici curiae on behalf of real party in interest.

BROUSSARD, Justice.

In the instant case we consider the appropriate standard to be applied by a magistrate in determining whether the public's right of access to preliminary hearings should be limited due to the risk of impairment of a defendant's right to a fair trial.

The real party in interest, Robert Rubane Diaz, was charged by a complaint filed in the municipal court with the murder of 12 hospital patients by administering massive doses of the heart drug lidocaine.

He was also charged with special circumstances. At the time of the preliminary hearing there were many representatives of television stations, radio stations and newspapers present. On Diaz' motion pursuant to Penal Code section 868, ¹ the court ordered the preliminary hearing closed to the press and public. The preliminary hearing was held over a period of 41 days, and Diaz was held to answer on all charges. The judge sealed all transcripts.

About seven months later, petitioner sought to gain access to the transcripts in the superior court. The prosecution joined in the motion. Diaz opposed, presenting evidence of the widespread publicity given to the case by the media, some of which had continued until the time of the hearing. The judge, concerned that releasing the transcript might require either delay of the proceedings or transfer of the trial to another jurisdiction, pointed out that defendant had a right to trial without undue delay and a Sixth Amendment right to trial in the vicinage. The judge found that "there is a reasonable likelihood that making all or any part of the transcript public might prejudice the defendant's right to a fair and impartial trial." He ordered that the transcript remain sealed, and petitioner commenced the instant mandamus proceeding. ²

THE ASSERTED CONSTITUTIONAL RIGHT OF ACCESS

Prior to its 1982 amendment, section 868 provided that upon the request of the defendant, the magistrate shall exclude the public from the preliminary examination. In San Jose Mercury-News v. Municipal Court (1982) 30 Cal.3d 498, 179 Cal.Rptr. 772, 638 P.2d 655, the statute was upheld against a claim that the federal and state Constitutions give the press and public a right of access to preliminary hearings that may be foreclosed only when outweighed by defendant's interest in a fair trial and that section 868 violated that right because it had no provision for balancing of competing interests in individual cases.

In considering the claim of violation of federal constitutional rights, the court recognized that the United States Supreme court has held that the First Amendment provided a qualified right of public access to the trial and that a majority of justices had recognized a qualified right of access to pretrial hearings such as suppression hearings. (30 Cal.3d at pp. 503-506, 179 Cal.Rptr. 772, 638 P.2d 655.) The court pointed out that the basis of the qualified access right was the long history of trials being presumptively open and that the open trial tradition guards against persecution and favoritism, increases public awareness of the judicial process, inspires confidence in the criminal justice system, and serves the cathartic needs of the community. (30 Cal.3d at p. 505, 179 Cal.Rptr. 772, 638 P.2d 655.)

In San Jose Mercury-News, the court also pointed out that seven of the United States Supreme Court justices had stated that preliminary hearings, unlike trials, were traditionally private at common law and were distinguishable from pretrial suppression hearings. (30 Cal.3d at pp. 504-506, 179 Cal.Rptr. 772, 638 P.2d 655.) This court concluded that no right of access arose under the First Amendment. (30 Cal.3d at p. 506, 179 Cal.Rptr. 772, 638 P.2d 655.)

In rejecting the claim of conflict with the California Constitution, the court recognized that state constitutional guarantees may give greater protection to some rights than the federal counterparts, but concluded that the Legislature reasonably gives fair trial rights a preference over access rights in certain classes of proceedings where danger of prejudice is strong and proof on a case-by-case basis appears difficult and that section 868 was a permitted Petitioner urges that recent decisions of the United States Supreme Court require repudiation of the conclusion in San Jose Mercury-News that the First Amendment does not provide a right of access to a preliminary hearing. Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248, involved a Massachusetts statute requiring mandatory closure of trial during the testimony of a minor sex victim. The court again relied upon the tradition of trials being open to the press and public, and it asserted that before a state may deny the right of access it must be shown that the denial is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest. (457 U.S. at pp. 603-607, 102 S.Ct. at pp. 2618-2620.) Responding to an argument that trials have not always been open during testimony of minor sex victims, the court in a footnote stated that whether the First Amendment right of access can be restricted in the context of any criminal trial depends not on the historical openness of that type of trial but rather on the state interests assertedly supporting the restriction. (457 U.S. at p. 605, fn. 13, 102 S.Ct. at p. 2619, fn. 13.) The court concluded that the Massachusetts statute was not narrowly tailored to accommodate the state's compelling interest in protecting the physical and psychological well-being of a minor and that rather than mandatory closure the state's interest may be protected by a case-by-case determination whether closure is necessary to protect the welfare of the minor. (457 U.S. at p. 608, 102 S.Ct. at p. 2621.)

                means of protecting defendants' rights to a fair trial free of juror bias. 3  (30 Cal.3d at pp. 506-514, 179 Cal.Rptr. 772, 638 P.2d 655.)
                

The second case relied upon by petitioner is Press Enterprise Company v. Superior Court (1984) 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629, where the court held that an order closing voir dire proceedings was invalid on the ground that the trial judge had failed to consider alternative measures. In a concurring opinion, Justice Stevens stated that the purpose of the access right is assuring freedom of communication on matters relating to the functioning of government and that "the distinction between trials and other official proceedings is not necessarily dispositive, or even important, in evaluating the First Amendment issues." (464 U.S. at p. ----, 104 S.Ct. at p. 828, 78 L.Ed.2d at p. 742.)

Neither case warrants repudiation of the conclusion in San Jose Mercury-News that the First Amendment does not provide a right of access to preliminary hearings. Both cases were concerned with the right of access to trials rather than preliminary hearings. The problem of potential prejudice to the defendant is substantially different in relation to public trials than it is in relation to public preliminary hearings. In Press Enterprise Company the court emphasized that prejudice to the defendant remains the primary concern, stating: "No right ranks higher than the right of the accused to a fair trial." (464 U.S. at p. ----, 104 S.Ct. at p. 823, 78 L.Ed.2d at p. 642.) The main concern asserted in both cases to justify closure was not prejudice to the defendant but the interests of others, i.e., the privacy rights of prospective jurors and the physical and psychological well-being of minor sex victims.

While a footnote in Globe Newspaper Co. suggests that historical openness may no longer be an element of the First Amendment access right, the footnote by its own language is limited to trials. (Globe Newspaper Co. v. Superior Court, supra, 457 U.S. at p. 605, fn. 13, 102 S.Ct. at p. 2619, fn. 13.) The subsequent Press Enterprise Company decision not only indicates that one of the bases of the access right to trials as established by Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 is that trials were open at the time of the We conclude that petitioner and amici have failed to establish a basis for repudiating the conclusion in the 1982 decision in San Jose Mercury-News that the First Amendment access right does not extend to preliminary hearings. In addition, petitioner and amici have not pointed to any matters warranting repudiation of the portion of San Jose Mercury-News relating to the California Constitution.

adoption of the First Amendment but also devotes the first portion of the opinion to establish that [37 Cal.3d 777] at the time of the adoption of the First Amendment public jury selection was the common practice in America. While the statement of Justice Stevens relied upon by petitioner is to the effect that the access right is not limited to trials, it does not establish that historical conditions are irrelevant because he also states that the question before the court " 'focuses on First Amendment ......