State v. Coe

Decision Date22 March 1984
Docket NumberNo. 49104-6,49104-6
Citation101 Wn.2d 364,679 P.2d 353
Parties, 10 Media L. Rep. 1465 STATE of Washington, Respondent, v. MaymeRuth COE, Defendant, KHQ, Inc., Appellant.
CourtWashington Supreme Court

Witherspoon, Kelley, Davenport & Toole, Duane Swinton, Glenn Harmon, Spokane, for appellant.

Maxey Law Offices, P.S., Carl Maxey, George Conrad, Spokane, for respondent.

Davis, Wright, Todd, Riese & Jones, P. Cameron Devore, Daniel Waggoner, Seattle, amicus curiae on behalf of Allied Daily Newspapers.

Riddell, Williams, Ivie, Bullitt & Walkinshaw, Steven DeForest, Seattle, amicus curiae on behalf of Nat'l Broadcasting Co., Nat'l Assoc. of Broadcasters, Radio-Television News Directors Assoc. & Reporters Committee for Freedom of the Press.

Cahill, Gordon & Reindel, Floyd Abrams, New York City, amicus curiae for respondent.

UTTER, Justice.

The trial court held a radio and television station in contempt for violating a court order prohibiting the broadcast of accurate, lawfully obtained copies of tape recordings that had been played in open court. We hold that such an order is void under the free speech and press provisions of the Washington and United States constitutions, and therefore reverse the conviction.


MaymeRuth Coe (Coe) was on trial from May 17-25, 1982 in Spokane County Superior Court on a charge of solicitation of murder. She was accused of attempting to hire an undercover police officer to murder the prosecutor and judge who had previously tried and convicted her son Fred Coe, of a series of rapes. Both the rape trial and the murder solicitation trial were very highly publicized.

The case was tried without a jury. Coe's defenses included entrapment and diminished mental capacity at the time she solicited the murders. Among the most important evidence against Coe were tape recordings of her meetings and telephone conversations with the undercover police officer.

On the second day of trial (May 18) a reporter for appellant KHQ, Inc. (KHQ), a Spokane radio and television station, asked the prosecutor for a copy of the tape recordings, which had already been admitted into evidence. The prosecutor obliged on the condition that the tapes not be aired before they were played in open court. KHQ complied with this condition.

Later on May 18, Coe's attorney asked the trial court to withhold the tapes from the news media. The trial judge orally ordered KHQ not to air the tapes. A hearing on the issue was scheduled for 4 p.m. the next day, May 19. Meanwhile, on the afternoon of May 18, the recordings were played in open court. Coe received permission to leave the packed courtroom while the tapes were being played. Transcripts of the recordings were released to the news media the same day, and were printed virtually in their entirety in the May 19 editions of Spokane's daily newspapers.

At the May 19 hearing, Coe's attorney, Carl Maxey, presented an affidavit from two psychologists who had been retained as defense witnesses. The affidavit described Coe's treatment for psychological problems, including "manic-depressive psychosis" and "suicide ideation." It stated:

In essence the tapes made public would be direct opposition to both the short and long term treatment goals and would facilitate a full-blown psychotic break.

* * *

If the tapes were to be given for general access by the media and the public, not only would it be probable for Ruth to undergo remission, playing of the tapes would exascerbate [sic] her psychosis resulting in a high potential for suicide. The tapes made public would in fact, literally destroy her. Suicide and/or a major psychotic break with reality would be her only remaining defense mechanisms. If suicide was attempted but not completed, irreparable damage would occur; therefore in consideration of the above, we strongly believe that the tapes should not be made public.

Clerk's Papers, at 57-58.

At 9 a.m. the next morning, May 20, the judge announced in open court that the order would remain in effect indefinitely pending the news media's production of affidavits or other expert opinions to refute the opinions of Coe's psychologist.

Later that afternoon, attorneys for Coe and KHQ met with the judge in chambers. In his oral decision, the judge said of that meeting:

[KHQ's attorneys] requested the right to either have an examination of the Defendant by some psychologist or psychiatrist of their choosing or be given the opportunity to cross-examine the two psychologists. Mr. Maxey declined to permit that, and I declined, at least at that time to lift the ban. And we sort of left the thing on hold.

Verbatim Report of Proceedings, Vol. IV, at 3. Counsel for KHQ added that Mr. Maxey had declared his willingness to be held in contempt rather than permit the psychologists to be examined.

At or shortly after that discussion, KHQ's attorney presented the judge with a brief proposed order prohibiting the broadcast of the tapes. The written order, like the oral order then in effect, contained no express temporal or geographic limits. The judge signed the order to provide KHQ a written basis for appeal, adding in his own handwriting that it was "based on the allegations stated in the affidavits of the two psychologists filed by Def[endant]." In his later oral opinion, the judge added that he also considered prior testimony about Coe's longstanding psychiatric problems.

Beginning at noon on Friday, May 21, following presentation of a motion to reconsider the written order, KHQ broadcast excerpts of the tape recordings on its radio and television stations. 1 That same Friday afternoon, Coe learned that the tapes had been broadcast, and suffered some kind of "collapse" that led her to check into a hospital psychiatric ward for the weekend. The trial was continued until Monday, resulting in a half-day delay.

In response to a motion by Coe's attorney, the judge issued an Order to Show Cause why KHQ should not be held in civil contempt under RCW 7.20 and the inherent power of the court.

At the May 26 show cause hearing, KHQ was found in contempt of court. The judge said in his oral decision that "I expressed some skepticism [at the May 19 hearing] as to whether or not this one additional traumatic event, that is, of the rebroadcast over the media of the tapes themselves, would be sufficient to change her psychiatric situation all that much", and "I felt some skepticism about the validity or soundness of the [psychologists'] opinion ..." Verbatim Report of Proceedings, Vol. IV, at 2, 7. He also expressed some uncertainty about the legality of the order.

On May 28, Coe was found guilty of solicitation of murder.

On September 1, 1982, a memorandum decision holding KHQ in contempt was entered. The memorandum decision contained a number of important findings and statements. First, the judge found that KHQ had lawful physical possession of the tapes prior to any court order regarding their broadcast. Second, he found that although the news media's First Amendment right to broadcast the tapes was not absolute, their limited right was not satisfied by the publication of the tapes in print or by oral repetition. Third, the judge declared that "[t]his is truly a 'prior restraint' case." Clerk's Papers, at 85. Fourth, he stated:

Defendant argues that her right to a fair trial was in jeopardy because of the likelihood that the broadcast of the tapes would cause her such severe mental or emotional distress as to prevent her from continuing with the trial. I did not base my order on this contention, however, for the reason that the trial being before the court without a jury, a brief interruption of the trial, as actually did occur, was not in my view a sufficiently grave consequence in and of itself to justify the prior restraint order ...

Clerk's Papers, at 85. Fifth, the judge stated that the order was actually based on the need to protect Coe's rights to life and sanity, which he found to be impliedly protected as rights "retained by the people" under the ninth amendment to the United States Constitution. Sixth, he reiterated that he had been "openly skeptical of the opinion that rebroadcast of the tapes would be the straw that broke the camel's back for Mrs. Coe ..." Clerk's Papers, at 87. Seventh, the judge "concede[d] that KHQ was placed in an awkward position because it claimed an inability to refute the affidavits of [the psychologists] for the reason that the experts it had apparently consulted would not express an opinion without examining the defendant.... I had no reason to doubt it ..." Clerk's Papers, at 88. Finally, the judge stated that the "order was and is of honestly debatable constitutionality". Clerk's Papers, at 91. He nevertheless imposed a fine of $2,000.

KHQ appeals the contempt judgment on the ground that the order restraining broadcast of the tapes was constitutionally invalid for a number of reasons, and therefore a contempt conviction could not be based on its violation. Respondent replies that the order was constitutionally valid, and that even if it were not, it would not relieve KHQ of the consequences of deliberately disobeying a court order.


The first issue is whether the alleged invalidity of the underlying order would vitiate the contempt judgment.

Our "collateral bar" rule states that a court order cannot be collaterally attacked in contempt proceedings arising from its violation, since a contempt judgment will normally stand even if the order violated was erroneous or was later ruled invalid. See, e.g., Mead School Dist. 354 v. Mead Educ. Ass'n, 85 Wash.2d 278, 280-84, 534 P.2d 561 (1975); Walker v. Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). However, we have long recognized at least one exception: a contempt conviction will fall if the underlying order was not within "the scope of the jurisdiction of the issuing court." Mead, at 280, 534 P.2d 561. After reviewing the Washington cases reversing contempt...

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