State ex rel. Post-Tribune Pub. Co. v. Porter Superior Court

• Decision Date: 25 November 1980
• Docket Number: POST-TRIBUNE,No. 580S139,580S139
• Citation: 412 N.E.2d 748,274 Ind. 408
• Parties: , 6 Media L. Rep. 2300 STATE of Indiana On The Relation Of ThePUBLISHING COMPANY, and Charles Kingsbury, Relators, v. PORTER SUPERIOR COURT, and Honorable Marvin E. McLaughlin, As Special Judge of the Porter Superior Court, Respondents.
• Court: Indiana Supreme Court

Page 748

412 N.E.2d 748

274 Ind. 408, 6 Media L. Rep. 2300

STATE of Indiana On The Relation Of The POST-TRIBUNE

PUBLISHING COMPANY, and Charles Kingsbury, Relators, v. PORTER SUPERIOR COURT, and Honorable Marvin E. McLaughlin, As Special Judge of the Porter Superior Court, Respondents.

No. 580S139.

Supreme Court of Indiana.

Nov. 25, 1980.

Richard W. Cardwell, Indianapolis, Frederick M. Cuppy, Merrillville, for relators.

Marvin D. McLaughlin, pro se and for respondents.

DeBRULER, Justice.

This is an original action instituted by relators, a newspaper publishing company and its reporter, seeking an alternative writ of mandate and prohibition requiring the respondent court to expunge its orders closing a pre-trial hearing upon a motion to be let to bail and withholding a transcript of the hearing on the motion until the swearing of the jury prior to trial. Respondent, the Honorable Marvin E. McLaughlin, Judge of the Knox Circuit Court, made these orders in a criminal case pending in the Porter Superior Court over which he had assumed jurisdiction as Special Judge. The case was based upon a charge against one Todrei D. Sanders for murder in the stabbing death of one Michael Spagoletti.

Relators do not contend that respondents are without authority or jurisdiction to order the closure of pre-trial judicial proceedings under any circumstances. It is, however, relators' contention in their own words that respondents are without authority or jurisdiction to order the closure of such proceedings (1) without first affording relators a meaningful opportunity to be heard, and (2) without making sufficient findings of fact and conclusions of law to support such order. They contend that the denial of access to the hearing and to the transcript has violated their constitutional rights under Amendments I and XIV to the United States Constitution and under Art. I, § 9, and Art. I, § 12, of the Indiana Constitution, statutory rights under Ind.Code § 35-1.1-2-1, and rights under the common law of Indiana. Because of the limitations inherent in original action litigation and because of special limitations in this particular record, we choose to assume, without deciding the specific issues, that the public and the press have a right to attend judicial proceedings in the courtroom recognized and protected by the foregoing constitutional provisions and state laws. We nevertheless conclude that no violation of such assumed rights occurred in the circumstances presented in this case.

There is venerable tradition and practice in Indiana courts engaged in the administration of the criminal law which requires proceedings to be open to attendance by the general public, the press and other news media, and friends of the accused. Open judicial proceedings are the norm and are favored. This Court is slow to lend its sanction to secrecy and exclusion in the proceedings of a court. Reed v. State, (1896) 147 Ind. 41, 46 N.E. 135. This deep concern and caution springs primarily from considerations going to the public trial right of the accused guaranteed by the Sixth Amendment to the United States Constitution and Art. I, § 13, of the Indiana Constitution. The public, press, and other news media do not participate in the enjoyment of that right. Gannett Co., Inc. v. DePasquale, (1979) 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608. It is personal to the accused and may be waived, and does not carry with it the further right to a trial from which the public and press are barred. Marshall v. State, (1970) 254 Ind. 156, 258 N.E.2d 628; Irwin v. State, (1942) 220 Ind. 228, 41 N.E.2d 809, overruled on other grounds; State v. Lindsey, (1952) 231 Ind. 126, 106 N.E.2d 230. A waiver of the public trial right occurs, for example, whenever the accused pleads guilty. It is this public trial right of the accused which is intended to insure that the public may see that the accused is fairly dealt with, and it is for his benefit that the right is recognized. A "trial" for these purposes is considered to be the actual trial by jury upon the issue of guilt or innocence. Reed v. State, supra. This Court has concluded that the public trial right is not violated by the exclusion of the public during the testimony of a single witness during an actual trial, Hackett v. State, (1977) 266 Ind. 103, 360 N.E.2d 1000, such limited restrictions being within the trial court's discretion where they are related to a legitimate purpose furthering the integrity of the judicial process and are supported by a sufficient record. In the case at bar, the public trial right of the accused has been scrupulously guarded. He concurred in the closure order, and indeed that order is ostensibly intended to protect his right to a later public trial by an impartial jury in Porter County.

In Gannett, the Supreme Court assumed arguendo, that the public and press have a right to access to pre-trial hearings in criminal proceedings by reason of the First Amendment. That amendment is binding upon Indiana. Gitlow v. New York, (1925) 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. We take the same stance with regard to the First Amendment and to Art. I, § 9, of the Indiana Constitution which guarantees the right to speak, write, or print freely, Art. I, § 12, which requires all courts to be open, Ind.Code § 35-1.1-2-1, which requires criminal actions to be tried publicly, and the common law of Indiana as well. Several limitations appear in this record which warrant this approach. Relators contend that relator Kingsbury was in court when the closure order was first made and that he objected to it. There is no court record of this event before us. However, relator Kingsbury has filed an affidavit setting forth an objection to closure which he claims to have been read to the court at the time the court ordered closure. Respondent has not challenged the accuracy of this affidavit. Nevertheless the procedure completing a trial court record is not satisfactory. Furthermore, the consideration of Indiana authorities construing the above state constitutional provisions and statute in any context is limited on both sides and nonadversarial. There is, for example, indication in but a few cases examined that the requirement of Art. I, § 12, that the courts be open may refer to being open to the injured for legal redress, Gallup v. Schmidt, (1900) 154 Ind. 196, 56 N.E. 443; Dodd v. Reese, (1940) 216 Ind. 449, 24 N.E.2d 995, and not to openness in the sense of being open to observation by the public and press.

Upon this stance we examine the decision of Judge McLaughlin to close the hearing upon the defendant's motion to be let to bail to the press and public, without first conducting a hearing affording relators an opportunity to appear by counsel and marshall arguments against closure. Relators contend that the closure order was not valid because it was not preceded by a discrete hearing upon their objection to it. We do not read the Gannett opinions as creating a per se rule requiring such a hearing. We read the opinions comprising the majority view of the court as requiring trial courts to give "all appropriate deference" to the assumed right of access and that a hearing prior to ordering closure is to be favored and is to be the norm, but not that the hearing is mandatory under all conceivable circumstances. Relators contend that they made an objection to closure in the courtroom, unlike the situation considered in Gannett, and that the presence of this objection made the hearing prior to closure mandatory. As pointed out above, the record of the trial court before us is not satisfactory in evidencing an objection to closure. It does not disclose for example that the judge was aware that an objection was made. Nevertheless, we believe that an objection of this sort is to be considered as a circumstance strongly supporting the necessity of a precedent hearing. Circumstances can and do arise in court, even when an objection to closure is made, where the holding of a hearing will vitiate critical interests of the courts, the public, the prosecuting party, and the constitutional rights of the accused. When they do, as they did in this case, closure without a precedent hearing at which the public and press are heard to argue against closure may be consistent with the right to access.

In the case before us circumstances clearly show that the values to be protected by a precedent hearing on closure were actually provided a protection commensurate with that which would have been provided by a hearing, and that the delay occasioned by a hearing on closure would have denied or impinged upon several fundamental rights of the accused. The judge was in the courtroom in the presence of spectators, witnesses and others having business with the court, and publicly announced that he was going to close the courtroom. In doing so, he explained what the hearing was about and why he was ordering the courtroom cleared for it. He spoke thusly:

"THE COURT: We're ready to proceed on the Motion to be Let to Bail.

"Now, something to say to all of you in the audience. Really, for most instances, a Motion to be Let to Bail is not what it says. For most instances it's an economical and speedy way of finding out what all the evidence is in the trial.

"Now, because under the law to prevail on that motion the defense must bring in all the witnesses of the State and try to show to the Court that the evidence against the defendant is not strong or the presumption great.

"Now, obviously, to do that the Court must hear all the evidence that will be presented at trial.

"Now, we are at a rather strong position in this trial in that the trial is set for just three weeks from now. The jurors or prospective jurors are all on a panel and they know who they are. So as a practical matter, everytime there is anything said by the news media, be it radio, television or in the press, those prospective jurors, knowing that they will be or...