State v. DeCato
| Decision Date | 18 December 2007 |
| Docket Number | No. 2007–178.,2007–178. |
| Citation | 938 A.2d 898,156 N.H. 570 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. William DeCATO. |
Kelly A. Ayotte, attorney general (Michael K. Brown, senior assistant attorney general, on the brief and orally), for the State.
Theodore Lothstein, assistant appellate defender, of Concord, on the brief and orally, for defendant.
Orr & Reno, P.A., of Concord (William L. Chapman, on the brief and orally), for petitioner Newspapers of New Hampshire, Inc.
Malloy & Sullivan, of Manchester (Kathleen C. Sullivan, on the brief and orally), for petitioner Union Leader Corporation.
Gregg P. Leslie of Arlington, VA, by brief, and Orr & Reno, P.A., of Concord (William L. Chapman, on the brief), for The Reporters Committee for Freedom of the Press, as amicus curiae.
The petitioners, Newspapers of New Hampshire, Inc. and Union Leader Corporation, appeal an order of the Superior Court (Mangones, J.) partially denying their request for access to proceedings and records of probable cause hearings initiated by the State against the defendant, William DeCato, pursuant to the Involuntary Civil Commitment of Sexually Violent Predators Act (SVPA), RSA ch. 135–E (Supp. 2007) (amended 2007). We vacate and remand.
Having found a high likelihood that "sexually violent predators [will] engag [e] in repeat acts of predatory sexual violence," and that the "existing involuntary commitment procedures for the treatment and care of mentally ill persons are inadequate to address the risk [they] pose," the legislature enacted the SVPA to establish a "civil commitment procedure for the long-term care and treatment of sexually violent predators." RSA 135–E:1. A "sexually violent predator" is any person who: (1) has been convicted of a "sexually violent offense"; (2) suffers from a "mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment"; and (3) is not eligible for involuntary admission under RSA chapter 135–C (2005 & Supp. 2007) or RSA 171–B (2002). RSA 135–E:2, XII; see RSA 135–E:2, III, VI–VII, XI.
Under the SVPA, in the event that a person who has been convicted of a sexually violent offense is eligible for immediate release from total confinement, the State may file a petition for an emergency hearing to determine whether probable cause exists that the person is a sexually violent predator. RSA 135–E:4, I; see RSA 135–E:2, XIII (defining "total confinement"). If the court finds probable cause, then the person is held in a secure facility and a multidisciplinary team of mental health professionals assesses whether the person is a sexually violent predator. RSA 135–E:4, II. If the team determines that the person is a sexually violent predator then the State may file a petition with the superior court to commit the person as a sexually violent predator. RSA 135–E:4, III. The court then conducts a trial to determine whether the person is a sexually violent predator. RSA 135–E:9. A person civilly committed under the SVPA will be held in a secure facility until "the person's mental abnormality or personality disorder has so changed that the person no longer poses a potentially serious likelihood of danger to others." RSA 135–E:11, II; see RSA 135–E:12. The commitment order shall remain valid for up to five years. See RSA 135–E:11, II.
The record supports the following: The defendant was convicted of one count of aggravated felonious sexual assault, which is a "sexually violent offense" under RSA 135–E:2, XI(c). On the last day of his sentence, the State petitioned for an emergency hearing pursuant to the SVPA to have him civilly committed as a sexually violent predator. The trial court conducted a probable cause hearing that was initially open to the public. At the parties' request, the trial court closed the evidentiary portion of the hearing. The court ruled that there was probable cause to convene a multidisciplinary team, pursuant to RSA 135–E:4. Subsequently, the petitioners filed petitions for access to the probable cause proceedings and records, claiming a right to public access under the State Constitution.
The trial court granted the petitioners' request for relief in part and denied it in part, ruling:
The multidisciplinary team found that the defendant was a sexually violent predator. The trial court provided a redacted version of the team's report to the petitioners. The trial court then conducted a second probable cause hearing and filed its determination under seal. The petitioners appealed, seeking access to the sealed records and proceedings. The State then withdrew the petition against the defendant and he was released from confinement.
On appeal, the petitioners argue that the trial court unreasonably restricted their constitutional rights to access to SVPA proceedings and records. Because the petitioners have failed to demonstrate that they have preserved their federal constitutional argument on appeal, we only consider public access under the State Constitution. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250, 855 A.2d 564 (2004). We review questions of constitutional law de novo. State v. Lavoie, 155 N.H. 477, 481, 924 A.2d 370 (2007).
New Hampshire has a strong tradition of recognizing the right of public access to governmental proceedings and records. "The public right of access to court proceedings and records pre-dates the State and Federal Constitutions and is firmly grounded in the common law." Associated Press v. State of N.H., 153 N.H. 120, 125, 888 A.2d 1236 (2005). "Unlike some governmental proceedings and records, most court records and proceedings have historically been open to the public."
Id. at 125, 888 A.2d 1236 (citation omitted). Moreover, our State "is one of only a handful of States with a constitutional provision that explicitly protects the public's right of access to governmental proceedings and documents." Id. at 128, 888 A.2d 1236. The State constitutional right to public access is derived from Part I, Articles 7, 8, and 22 of the State Constitution. See id. at 124–25, 128, 888 A.2d 1236.
Part I, Article 8 reads:
All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable, and responsive. To that end, the public's right of access to governmental proceedings and records shall not be unreasonably restricted.
N.H. CONST. pt. I, art. 8. The last two sentences of this article were added in 1976 "to further [the] tradition of open court proceedings and records, consistent with the purpose of assuring ... the accountability of the judiciary." Associated Press, 153 N.H. at 125, 888 A.2d 1236. "[T]he reasonableness of a restriction on access to court proceedings and records must be examined in light of this purpose and the common law and constitutional origins of the right." Id.
We read Part I, Article 8 in conjunction with Part I, Article 7, which provides, in pertinent part: "The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state." N.H. CONST. pt. I, art. 7 ; see Associated Press, 153 N.H. at 128, 888 A.2d 1236. Read together, these provisions express the American theory of government that the government is ultimately accountable to the people. Opinion of the Justices, 111 N.H. 175, 177, 278 A.2d 475 (1971).
Further, where federal courts have found that the right of public access is rooted in the First Amendment of the Federal Constitution, we have found that the right of public access to court records and proceedings is grounded in Part I, Article 22 of the State Constitution. Associated Press, 153 N.H. at 128, 888 A.2d 1236. Part I, Article 22 provides: "Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved." N.H. CONST. pt. I, art. 22.
Thus, "[t]he right to open courtrooms and access to court records related to court proceedings is firmly supported by New Hampshire practice and common law principles, Part I, Articles 8 and 22 of our State Constitution and our guidelines for public access." Associated Press, 153 N.H. at 129, 888 A.2d 1236 (quotation omitted). "Such access is critical to ensure that court proceedings are conducted fairly and impartially and that the judicial process is open and accountable." Id. (quotation and citations omitted).
We first address whether the state constitutional right of public access attaches generally to proceedings under the SVPA. Although the defendant urges us to consider only whether such a right attaches at the probable cause stage, in the interest of judicial economy, we consider whether it...
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