State v. Koch, 97-261.

• Citation: 730 A.2d 577
• Decision Date: 05 March 1999
• Docket Number: No. 97-261.,97-261.
• Parties: STATE of Vermont v. Frederick K. KOCH.
• Court: Vermont Supreme Court

730 A.2d 577

STATE of Vermont v. Frederick K. KOCH.

No. 97-261.

Supreme Court of Vermont.

March 5, 1999.

Robert B. Hemley and Dennis R. Pearson of Gravel and Shea, Burlington, for intervenors-appellants.

David A. Gibson, Brattleboro, for defendant-appellee.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

SKOGLUND, J.

Two newspaper publishers and their reporters, intervenors in the above entitled criminal proceedings, appeal the district court's decision closing two hearings concerning a motion to revoke defendant Koch's order of nonhospitalization and the court's decision sealing the nonhospitalization order that resulted from those hearings. Intervenors allege that the district court violated their qualified First Amendment right of access by erroneously requiring closure of the hearing upon defendant's request and by giving 18 V.S.A. § 7103 an overly broad construction, incompatible with the presumptive public nature of court documents when it sealed the nonhospitalization order. Without reaching the qualified, constitutional right-of-access issue, we reverse both the trial court's decision to close the revocation hearing and to seal the nonhospitalization order.

The parties do not dispute the relevant facts. Defendant Koch was arraigned in March 1997 on two misdemeanor counts of disorderly conduct. The district court ordered a forensic evaluation of defendant at the state hospital in Waterbury to determine his competence to stand trial and his sanity at the time of the offense. See 13 V.S.A. §§ 4814, 4815. After the competency hearing, the parties stipulated that defendant was competent. Nonetheless, based on the report of the examining psychiatrist that defendant had likely been insane at the time of the events charged by the information, the court ordered defendant's continued confinement at the state hospital pending a hospitalization hearing. See 13 V.S.A. § 4820(1).

The court conducted the hospitalization hearing on April 22, 1997, pursuant to 13 V.S.A. §§ 4821 and 4822. Defendant did not request a closed hearing; it was conducted in open court and covered by representatives of the news media. At the conclusion of the hearing, the court made oral findings on the record determining that defendant was in need of treatment as set out in 18 V.S.A. § 7101 but deciding that defendant could receive treatment outside a hospital setting. See 18 V.S.A. § 7617. The court subsequently issued a written order of nonhospitalization.

On May 14, 1997, the State and the Commissioner of Mental Health joined in a motion requesting the court to revoke its order of nonhospitalization and subject defendant to hospitalization. Petitioners based their request on defendant's alleged admission that he struck a pedestrian with his car on May 9, 1997, in Stowe, Vermont, but could not explain how the accident occurred. The pedestrian died three days later from injuries sustained in the accident.¹ The motion for revocation alleged that the program of nonhospitalization treatment as outlined in the court's order of April 22, 1997, had become inadequate to meet defendant's need for treatment and that "[s]pecifically, Mr. Koch presents a danger to other persons which is incompatible with his continued presence outside a hospitalized setting."

At the May 16, 1997, hearing on the motion to revoke the order of nonhospitalization, defendant requested that the court close the hearing to the public. The court received written requests from reporters for The Brattleboro Reformer and The Rutland Herald to attend the proceedings. The court, relying on 18 V.S.A. § 7615(e), ordered the hearing closed, and stated its position that under the statute "the proposed patient [has] an absolute election to have proceedings with respect to mental health commitments conducted in private." On May 29, 1997, the State and defendant filed a stipulation (later referred to by the court as a "consent decree") in support of defendant's release from the state hospital and entry of a new order of nonhospitalization.²

On June 2, 1997, the court held a hearing to consider the parties' consent decree. Again, this hearing was closed to the public. The same day, the court issued an order pursuant to 18 V.S.A. § 7103(a) adopting the parties' proposed consent decree. The order required that the full contents of the consent decree, including the terms and conditions of nonhospitalization and methods of enforcement, remain under seal.

Also on June 2, the court issued a written order in which it reconsidered the closure of the revocation hearings but ultimately denied the appellants' motion seeking access to the hearings and nonhospitalization order. The court reasoned that "the proceedings are cloaked in a general presumption of confidentiality." Notwithstanding its holding that hearings were closed absent a waiver of confidentiality by the proposed patient, the court went on to analyze whether the public and press had a qualified First Amendment right of access under the test set forth in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise II). In its analysis, the court compared involuntary commitment proceedings to juvenile proceedings and opined that the court's exclusive concern in both was the welfare of the proposed patient. Further, it read narrowly the discretion afforded the court to "exclude all persons not necessary for the conduct of the hearing" found in § 7615(e). Based on its conclusions that the public and press were not "necessary" for the hearing, that in most cases their presence would likely undermine the goals of the mental health statute, and that hospitalization hearings were traditionally closed to the public, the court held that the public did not have a qualified right of access to the June 2, 1997, proceedings. Intervenors' appeal followed.

Intervenors raise both constitutional and statutory arguments in support of their claim that the press should have access to hospitalization hearings and resultant orders when such hearings have been initiated as part of a criminal proceeding. Since we reverse on statutory grounds, we do not specifically address the court's application of the two-part test for determining whether a qualified First Amendment right of access attaches to a particular criminal proceeding. See State v. LaBounty, 167 Vt. 25, 29-30, 702 A.2d 82, 85 (1997) (citing Press-Enterprise Co. v. Superior Court, supra,

regarding test under which qualified right attaches if place and process have historically been open to press and general public, and if public access plays significant, positive role in functioning of particular process in question). This appeal therefore does not require us to decide if there is a qualified constitutional right for the public and the press to attend such hearings.

The statutory issues on appeal concern questions of law: (1) whether, pursuant to 18 V.S.A. §§ 7615(e) and 7103(a), a district court must close involuntary commitment hearings absent a waiver of confidentiality by defendant; and (2) whether 18 V.S.A. § 7103(a) creates a statutory presumption that nonhospitalization orders remain confidential. Thus, our "review is nondeferential and plenary." Godino v. Cleanthes, 163 Vt. 237, 239, 656 A.2d 991, 993 (1995). We address the issues in turn.

I.

Intervenors maintain that the court improperly construed the relevant statutes to give rise to a presumption of confidentiality, rather than a presumption of public access. Specifically, intervenors argue that the court erroneously relied on §§ 7615(e) and 7103(a) of Title 18 to close the hospitalization hearings and to seal the full and complete order of nonhospitalization. In the alternative they contend that, even if § 7103(a) is applicable to involuntary treatment hearings, the court here could have accommodated all interests by conducting the hearings in such a manner that it would not have required the wholesale disclosure of any clinical information in defendant's medical records. Intervenors maintain that they were wrongfully deprived of the court's reasoning and rationale for its actions regarding defendant's mental health status, even if they had no right to view the specific contents of psychiatric reports.

Defendant claims that 18 V.S.A. § 7615(e), authorizing exclusion of all unnecessary persons from hospitalization hearings, supports the argument for closed hearings. In addition, defendant argues that the issues addressed in a hospitalization hearing must be kept confidential under 18 V.S.A. § 7103(a), which prohibits the commissioner and other employees of the Department of Developmental and Mental Health Services from releasing documents or information unless one of the three statutory exceptions of § 7103(a) applies.

The court found a presumption in § 7615 that is not there. Section 7615, which permits the proposed patient to attend the hearing "at his election" and which permits the court to "exclude all persons not necessary for the conduct of the hearing," indicates the discretion afforded the court; it is not a signal that the hearings are presumptively confidential. Even evaluating § 7615 in light of the confidentiality afforded "certificates, applications, records and reports" that identify persons subjected to civil commitment under § 7103 of Title 18 does not result in such a presumption. Section 7103 was enacted pursuant to the Mental Health Act of 1968, as part of the legislative policy of deinstitutionalization that began in 1963 with the creation of a Department of Mental Health. See 1967, No. 305 (Adj.Sess.). The Mental Health Act marked the first effort to acknowledge the stigma attached to the label of mental illness, as seen in the confidentiality provisions found in § 7103. Nonetheless, § 7103's attempt to protect sensitive medical information, coupled with the ability of the judge to exclude persons from the hearing room pursuant...