State ex rel. Great Falls Tribune Co. Inc. v. Montana Eighth Judicial Dist. Court, Cascade County

• Decision Date: 26 July 1989
• Docket Number: 89-94,Nos. 89-67,s. 89-67
• Citation: 777 P.2d 345,238 Mont. 310
• Court: Montana Supreme Court
• Parties: , 16 Media L. Rep. 2155 STATE, ex rel., GREAT FALLS TRIBUNE COMPANY, INC., a Montana corporation, Applicant, v. MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY, Hon. John M. McCarvel, District Judge, Respondent. STATE, ex rel., GREAT FALLS TRIBUNE COMPANY, INC., a Montana corporation, Applicant, v. DISTRICT COURT, CASCADE COUNTY, Hon. John M. McCarvel, District Judge, Respondent.

Page 345

777 P.2d 345

238 Mont. 310, 16 Media L. Rep. 2155

STATE, ex rel., GREAT FALLS TRIBUNE COMPANY, INC., a Montana

corporation, Applicant, v. MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY, Hon.

John M. McCarvel, District Judge, Respondent.

STATE, ex rel., GREAT FALLS TRIBUNE COMPANY, INC., a Montana

corporation, Applicant,

v.

DISTRICT COURT, CASCADE COUNTY, Hon. John M. McCarvel,

District Judge, Respondent.

Nos. 89-67, 89-94.

Supreme Court of Montana.

Submitted July 13, 1989.

Decided July 26, 1989.

Peter Michael Meloy (argued), Meloy Law Firm, Helena, for applicant.

Marc Racicot, Atty. Gen., Dorothy McCarter (argued), Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., Great Falls, Russell K. Jones and Keith Douglass, Spokane, Wash., for respondent.

SHEEHY, Justice.

In these consolidated cases, we conclude that under Montana law, the public and press have a right of access to attend judicial hearings conducted to determine whether probation rights of convicted persons should be revoked; but that in a proper case such as this, a district court may close such a judicial hearing to the public and press under state law without thereby offending the federal constitution. When such hearings are properly closed to the public and press, no member of the public or representative of the press may interrupt the due course of such a hearing in a manner which might defeat the reason for closure. Such an interruption of a properly closed judicial hearing constitutes a contempt of the court.

Cause no. 89-067 arises from an underlying judicial proceeding in the District Court, Eighth Judicial District, Cascade County, wherein the Hon. John M. McCarvel, was presiding. On a date purposely not specified here, District Judge McCarvel ordered that a proceeding for the revocation of the probation of a certain person be closed to the public. After the incidents occurred which are reported hereafter, the Great Falls Tribune, a corporation distributing a newspaper in Great Falls, Montana, filed its application in this Court for a writ of supervisory control directed against the District Court to order the transcript of the revocation hearing to be made available to the Tribune, and to direct the district judge to refrain and desist from closing future revocation proceedings, subject to the rulings of this Court on circumstances which might justify closure.

Cause no. 89-094 is based on an application by Great Falls Tribune Company, Inc. for a writ of review of an order issued by District Judge McCarvel requiring the Tribune reporter, Melody Perkins, to appear before him to show cause why she should not be held for direct contempt of the court. The application in this Court was filed while the contempt proceedings in the District Court were pending but the hearing on contempt was held as scheduled and in the District Court Judge McCarvel adjudged Melody Perkins guilty of contempt and fined her in the sum of $300.00.

We ordered the two cases consolidated for oral argument and decision.

Essentially, the issues presented in the consolidated cases are these:

1. Whether the public and press have a right of access to attend probation revocation hearings.

2. Whether the District Court erred in closing the probation revocation hearing without first conducting an evidentiary proceeding in which the public and press could participate and without making findings of the reasons for closure as required by the state and federal constitutions.

3. Whether Melody Perkins was properly found in contempt.

The transcript of the revocation proceedings in this particular case has been, and still is, under seal. The following facts, however, may be stated, either from express disclosure ordered by us or from a transcript of the contempt proceeding.

Melody Perkins, a reporter for the Great Falls Tribune, assigned to cover the county courthouse, entered District Judge McCarvel's courtroom to observe a probation revocation proceeding already underway. Before she entered, and before the revocation proceeding commenced, court and counsel had met in chambers concerning the probation proceeding, and thereafter, in open court, the following occurred:

MR. JONES: Thank you, Your Honor. The first matter, I request this be a closed hearing, that all non-necessary persons leave the courtroom, and that the bailiff maintain the security of the courtroom during the hearing. We have stated our reasons previously to Your Honor.

THE COURT: Do you want to put them on the record now, or do you prefer not to?

MR. JONES: I prefer not to. I would be happy to make a record, but I prefer not to do it in open court. Your Honor is aware of our reasons, I believe. Thank you.

THE COURT: You are concerned for the safety of the person involved; is that it?

MR. JONES: Yes, Your Honor.

THE COURT: All right. All those in the courtroom who are not going to participate in this hearing will be asked to leave.

MS. SCHULKE: Does that include the members of our office, Your Honor?

THE COURT: No, not the County Attorney's office.

MS. SCHULKE: Can other members of Probation and Parole be here if they wish to?

THE COURT: Yes. Mary Fay, you can stay if you want.

MR. JONES: Who is Mary Fay?

MS. SCHULKE: A probation and parole officer here in Great Falls.

MR. JONES: All right. Thank you, Your Honor.

At the time that Melody Perkins had entered the courtroom, the decision to close the proceeding, as reported above, had already been made and the probation revocation hearing itself was ongoing. When she entered, the following occurred:

MS. SCHULKE: Your Honor, I recognize a member of the press here. I don't know her name, but she's from the Tribune.

THE COURT: This hearing is closed.

MS. MELODY PERKINS: Okay.

Melody Perkins left the court and thereafter telephoned her employer. She was instructed by the city editor of the Tribune, Tom Kotynski, to return to the court and there make a request for the grounds of the closure and for a continuance of the proceeding so that the Tribune could contact its attorney. Perkins returned as instructed, and re-entered the courtroom, accompanied by Tom Grimm, a television reporter. At this point, the following occurred:

THE COURT: Just a minute--

MS. MELODY PERKINS: Excuse me. As a representative of the Great Falls Tribune, I would like to know on what grounds this hearing has been closed.

THE COURT: Will you step out? Both of you step out.

MS. MELODY PERKINS: Your Honor, as a representative-- THE COURT: Do you want me to call the sheriff and have him put you out?

MS. MELODY PERKINS: The Tribune requests--

THE COURT: Will you call the bailiff?

MS. MELODY PERKINS: We will leave, Your Honor. Our attorney is being consulted, however.

MR. JONES: Your Honor, I also noticed video-tape cameras at the doors here. I don't know if that's--

MR. DOUGLASS: It's a concern how sound-proof the doors are. If the video cameras are right up to the doors with microphones, if they can hear through, or--

THE COURT: I don't know.

MS. SCHULKE: Someone from the sheriff's office will be here.

. . . . .

THE COURT: Get ahold of that guy with the TV camera there. See him out there, the guy with the TV camera?

THE BAILIFF: Yes.

THE COURT: I want to find out if he recorded any of this testimony, and tell him he had better not be using it.

THE BAILIFF: Yes.

THE COURT: Have him brought in here, will you?

MR. TOM GRIMM: I'm Tom Grimm, Channel 3.

THE COURT: Do you have a recorder on that camera?

MR. TOM GRIMM: I haven't captured anything that happened in this room.

THE COURT: Oh, all right.

MR. JONES: You are just looking through your lens?

MR. TOM GRIMM: I can't hear anything in the hall what's going on inside here.

THE COURT: Okay.

MR. TOM GRIMM: Can I go?

THE COURT: Yes.

MR. PAT PAUL: That other gentleman was an attorney with another firm in town, and I told him it was closed.

THE COURT: What?

MR. PAT PAUL: The other gentleman, he was an attorney with one of the firms in town, and I asked him to leave. Do you want these guys to stick around [referring to staff members of the sheriff's office]?

THE COURT: Yes.

When the Great Falls Tribune filed its application in this Court for a writ of supervisory control, the Attorney General responded by filing a motion for a review of the transcript of the probation revocation proceeding in camera. The transcript covered the proceeding in court and also the discussions which had occurred in chambers with the court before the revocation hearing. The Tribune objected to the consideration of the sealed transcript by this Court on the grounds that the Tribune would be at a disadvantage as to the argument regarding the propriety of the closure. Later this Court excerpted and made available to all parties the portions of the sealed transcript above quoted.

Ten days after the revocation hearing, District Judge McCarvel issued an order directed to Melody Perkins requiring her to show cause why she should not be cited for contempt. Tom Grimm, the television reporter was not cited. Melody Perkins appeared before Judge McCarvel on the date required, where after a hearing, she was found guilty of contempt and fined $300.00.

RIGHT OF ACCESS TO PROBATION REVOCATION HEARINGS

The United States Supreme Court recognizes a First Amendment right of public access to criminal trials. Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973; Globe Newspaper Company v. Superior Court (1982), 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248. The Supreme Court has also held that the Sixth Amendment right to a fair trial is a right personal to the defendant and not to the public. Gannett Company, Inc. v. DePasquale (1979), 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608. Although the Supreme Court has not yet interpreted the First Amendment to require public access to civil trials, several federal courts of appeals have taken that step. Publicker Industries, Inc. v. Cohen (3d Cir.1984), 733 F.2d 1059, 1070; Matter of...