Worrell Newspapers of Ind., Inc. v. Westhafer

• Decision Date: 20 September 1983
• Docket Number: No. IP 83-32-C.,IP 83-32-C.
• Citation: 570 F. Supp. 1447
• Parties: WORRELL NEWSPAPERS OF INDIANA, INC., d/b/a Greensburg News, Karen McKinley, Plaintiffs, v. Honorable John WESTHAFER, Decatur County Circuit Court Judge, Kenneth Bass, Decatur County Prosecuting Attorney, Defendants.
• Court: U.S. District Court — Southern District of Indiana

570 F. Supp. 1447

WORRELL NEWSPAPERS OF INDIANA, INC., d/b/a Greensburg News, Karen McKinley, Plaintiffs, v. Honorable John WESTHAFER, Decatur County Circuit Court Judge, Kenneth Bass, Decatur County Prosecuting Attorney, Defendants.

No. IP 83-32-C.

United States District Court, S.D. Indiana, Indianapolis Division.

September 20, 1983.

Edward O. DeLaney, Indianapolis, Ind., for plaintiffs.

Michael Schaefer, Mark J. Tidd, Deputy Attys. Gen. of Ind., Indianapolis, Ind., for defendants.

ENTRY

DILLIN, Chief Judge.

This case comes before the Court on the parties' cross-motions for summary judgment. For the reasons stated below, defendants' motion is granted; plaintiffs' motion is denied.

Facts

On the morning of November 4, 1982, Karen McKinley, a reporter for the Greensburg Daily News, was informed by a confidential source that a criminal information would be filed that morning by the Decatur County Prosecutor, Kenneth Bass, in connection with an arson investigation. The source named Patrick Schoettmer as the subject of the charges.

Later that morning, McKinley went to the Decatur County Clerk's office to look at the court records in order to confirm Schoettmer's name, that a probable cause hearing had been held, and to learn the details of the charges. However, the employees in the Clerk's office would not allow McKinley to look at the criminal docket book and denied her access to all records relating to the information.

McKinley then went to see John Westhafer, Judge of the Decatur County Circuit Court, and asked him why she was being denied access to the records relating to the information filed against Schoettmer. Judge Westhafer responded that he had granted the motion of Prosecutor Bass that the information be sealed until Schoettmer was taken into custody. The motion to seal the information was granted pursuant to Ind.Code 35-34-1-1(d) (1982), which provides:

The court, upon motion of the prosecuting attorney, may order that the indictment or information be sealed. If a court has sealed an indictment or information, no person may disclose the fact that an indictment or information is in existence or pending until the defendant has been arrested or otherwise brought within the custody of the court. However, any person may make any disclosure necessarily incident to the arrest of the defendant. A violation of this subsection is punishable as a contempt.

McKinley asked Judge Westhafer what would happen if the Greensburg Daily News published a story concerning the information filed against Schoettmer. Judge Westhafer told McKinley that she and her editor would be held in contempt if the newspaper published a story concerning the Schoettmer information prior to Schoettmer's arrest.

McKinley then returned to the Greensburg Daily News and told her editor, John Murphy, of her conversation with Judge Westhafer. McKinley and Murphy feared being held in contempt if any article concerning the Schoettmer information or its sealing were published. Therefore, no such article was published on November 4, 1982. On November 5, the Greensburg Daily News was informed that Schoettmer had been arrested. The newspaper then published an article concerning the information and arrest in its evening paper. But for Judge Westhafer's statements to McKinley and Ind.Code 35-34-1-1(d), plaintiffs would have published an article reporting the existence of the information on November 4.

Plaintiffs seek a declaratory judgment that Ind.Code 35-34-1-1(d) is unconstitutional, both on its face and as applied to plaintiffs because it violates plaintiffs' rights of freedom of speech and press as guaranteed by the First and Fourteenth Amendments to the Constitution of the United States.

Discussion

Whether we view Ind.Code 35-34-1-1(d) as a prior restraint upon the press or as a penal sanction for disclosing lawfully obtained, truthful information is not dispositive: in either case, the highest form of state interest is required to sustain the statute's validity. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 101-102, 99 S.Ct. 2667, 2669-70, 61 L.Ed.2d 399 (1979). See also Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 561, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 630, 75 L.Ed. 1357, 1367 (1931).

Indiana Code 35-34-1-1(d) will therefore pass constitutional muster if it, first, satisfies a state interest of the highest order and, second, is narrowly tailored to serve that interest...