State ex rel. Oregonian Pub. Co. v. Deiz

• Decision Date: 18 June 1980
• Docket Number: No. SC,SC
• Citation: 613 P.2d 23,289 Or. 277
• Parties: , 6 Media L. Rep. 1369 STATE ex rel. OREGONIAN PUBLISHING COMPANY and David Leroy Whitney, Plaintiffs- Relators, v. The Honorable Mercedes F. DEIZ, Judge of the Circuit Court of the State of Oregon for Multnomah County, Defendant. 26832.
• Court: Oregon Supreme Court

Page 23

613 P.2d 23

289 Or. 277, 6 Media L. Rep. 1369

STATE ex rel. OREGONIAN PUBLISHING COMPANY and David Leroy Whitney, Plaintiffs- Relators, v. The Honorable Mercedes F. DEIZ, Judge of the Circuit Court of the State of Oregon for Multnomah County, Defendant.

No. SC 26832.

Supreme Court of Oregon.

Argued and Submitted March 26, 1980.

Decided June 18, 1980.

[289 Or. 278-A] James T. Marquoit, of Saxon & Marquoit, Portland, argued the cause and filed the brief for defendant.

James H. Clarke, of Spears, Lubersky, Campbell & Bledsoe, Portland, argued the cause for plaintiffs-relators. With him on the briefs were Michael G. Holmes and Frank M. Parisi, Portland.

James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Karen H. Green, Asst. Atty. Gen., Salem, filed the brief amicus curiae on behalf of the State of Oregon.

Charles F. Hinkle and E. Walter Van Valkenburg, Portland, filed the brief amicus curiae on behalf of American Civil Liberties Union of Oregon, Inc.

Before DENECKE, C. J., and HOWELL, LENT, LINDE, PETERSON and TANZER, JJ.

DENECKE, Chief Justice.

The issue in this mandamus proceeding is the right of the press to attend all hearings in a juvenile court proceeding in which a 13-year-old girl was in custody in connection with the drowning of a younger child. The plaintiff, Oregonian Publishing Company, is a newspaper publisher; the plaintiff Whitney is a reporter employed by the Oregonian; the defendant is a circuit court judge.

Another judge started the juvenile proceeding and barred the press from the courtroom. The Oregonian nevertheless learned the identity of the 13-year-old juvenile and her identity was published in several newspapers. Subsequently, the Oregonian filed a motion to be permitted to attend the hearings involving the juvenile. In support, the managing editor of the Oregonian filed an affidavit stating that there was strong public interest in this juvenile proceeding. The juvenile opposed the motion. The defendant denied this motion and subsequently barred Whitney, the reporter, from a hearing in the same case and the court reaffirmed its intention to exclude the press from all future hearings in the case. The Oregonian and Whitney petitioned for a writ of mandamus and we issued an alternative writ, to which defendant demurred.

The plaintiffs first contend that they are entitled to attend the hearings under the provisions of ORS 419.498(1). That statute provides:

"* * * Unless the child or parents otherwise request, the general public shall be excluded and only such persons admitted as the judge finds have a proper interest in the case or the work of the court. The judge may exclude the public during any portion of the hearing in which it appears that the presence of the public may embarrass a witness or party or otherwise prejudice the reception of trustworthy evidence. * * * " (Emphasis added.)

The plaintiffs contend that the press should be found to have a "proper interest" in the case because it is important for the public to be informed about the workings of the juvenile justice system and the press informs the public.

The statute in point was enacted in 1959 as part of a thorough revision of the Oregon Juvenile Code. Or.Laws 1959, ch. 432, § 14. The legislation was adopted upon the recommendation of a legislative interim committee consisting of legislators, judges, lawyers and other interested parties. The interim committee borrowed freely from the provisions of the Standard Juvenile Court Act, including much of the text of ORS 419.498(1). ¹

The interim committee report evinces a strong commitment to the parens patriae theory of juvenile justice. This theory contemplates a nonadversary, quiet and relatively private proceeding. The interim committee reported: "The publicity, excitement and tension of a criminal trial often has a serious adverse effect on a child, particularly a young child." Report of the Legislative Interim Committee on Judicial Administration, Part II at p. 11 (1959).

The authors of the Standard Act made like statements and added: "The hearing should have the character of a conference, not of a trial." National Council on Crime and Delinquency, Standard Juvenile Court Act, comment on § 19 (6th ed. 1959), reprinted in 5 National Probation and Parole Assn. Journal, 323, 368 (1959). The exponents of the parens patriae approach also favored privacy because of their belief that exposing a child's misdeeds to the community would reinforce the delinquent's negative self-image and, therefore, impede rehabilitation. Howard, Grisso and Neems, Publicity and Juvenile Court Proceedings, 11 Clearinghouse Rev. 203 (1977). The defendant judge in this case is of the same opinion.

For these reasons the statute grants broad authority to the juvenile court judge to control access to the courtroom. The statute authorizes the judge to admit only persons the court finds have a proper interest in the case or the work of the court. The statute offers no guidance on the issue of what constitutes a "proper interest." That omission persuades us that the legislature intended that the juvenile judge have wide latitude in determining when a person seeking admission to the proceedings has a "proper interest."

ORS 419.498(1) does not single out the press for special treatment. With the interim committee's concern with the potential adverse impact of publicity, we conclude that the press are members of the public and may be excluded when the juvenile court is of the opinion that privacy would promote the goals of juvenile justice.

The plaintiffs cite decisions from other jurisdictions and from the Oregon Court of Appeals in which it was held that ORS 419.498(1) or its equivalent permitted the admission of the press to a juvenile hearing despite the opposition of the child. See for example State ex rel. Juvenile Dept. v. L., 24 Or.App. 257, 546 P.2d 153, rev.den. (1976). In all of these cases, however, the juvenile court had admitted members of the press and the juvenile sought higher court assistance in reversing such order. The decision did not hold the juvenile judge was required to admit the press. These cases unanimously support our conclusion that ORS 419.498(1) and like statutes entrust the decision to admit or exclude reporters to the discretion of the juvenile court. The defendant judge acted within her statutory powers in excluding the press in this case.

Having concluded the judge acted within her statutory authority, we must consider the plaintiffs' contention that the application of the statute in this case is invalid as it is contrary to Art. I, § 10 of the Oregon Constitution.

Art. I, § 10 of the Oregon Constitution states: "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay * * *." Although this language was enacted as part of the Constitution of 1859, it has not been authoritatively construed.

The plaintiffs contend it means what it literally states; that is, all proceedings before Oregon courts are required to be open to the public, including representatives of the news media. The defendant responds that Art. I, § 10 grants the right to an open trial solely to the litigants and not to the public. The defendant points out that the Sixth Amendment to the United States Constitution, as interpreted by Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), provides a right solely for the accused and not for the public or the press. According to this view, under Art. I, § 10, the juvenile court could close the courtroom if the child did not object or requested that it be closed.

One weakness in defendant's contention is that the language of the Oregon constitutional provision, Art. I, § 10, and the Sixth Amendment are substantially different. The Sixth Amendment provides: "the accused shall enjoy the right to a speedy and public trial * * *." The court said in Gannett, 443 U.S. at 380, 99 S.Ct. at 2905: "Our cases have uniformly recognized the public trial guarantee as one created for the benefit of the defendant." Art. I, § 10, on the other hand, does not provide that the accused or anyone else has the right to a public trial. It provides flatly that no court shall be secret and justice shall be administered openly. This prohibition can inure to the benefit of individuals but the sweeping language with which the prohibition is written makes it unreasonable to interpret it to be merely a grant of a right to an individual that can be waived or which would vanish if not affirmatively raised by the individual.

This interpretation of Art. I, § 10 is buttressed by the presence of the next section of the Bill of Rights in the Oregon Constitution, Art. I, § 11. The first sentence of § 11 is a paraphrase of the Sixth Amendment. The sentence states: "In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; * * *." This section is a guarantee of individual rights. The enumeration of these individual rights accentuates that the previous section with its provision that "no court shall be secret" must concern more than rights guaranteed to individuals.

The defendant further contends: "In theory, the public has no interest in (juvenile) proceedings, as the role of judicial monitor is assumed by each parent." But Art. I, § 10 does not recognize distinctions between various kinds of judicial proceedings; it applies to all.

The Attorney General, appearing as amicus curiae, argues that we should not enforce the express terms of Art. I, § 10 because the generation that adopted it did not intend the prohibition to be literally applied. He supports that argument by pointing out that section 898 of the original Code of Civil Procedure, enacted in 1862 and retained in the current code as ORS 1.040, provides:

"The sittings of every court of justice are public, except...