WXYZ, INC. v. Hand, Civ. No. 77-72195.

• Decision Date: 05 January 1979
• Docket Number: Civ. No. 77-72195.
• Citation: 463 F. Supp. 1070
• Parties: WXYZ, INC., and Michigan Association of Broadcasters, Plaintiffs, v. Michael J. HAND, District Judge, 47th Judicial Circuit Court of the State of Michigan, Defendant.
• Court: U.S. District Court — Western District of Michigan

463 F. Supp. 1070

WXYZ, INC., and Michigan Association of Broadcasters, Plaintiffs, v. Michael J. HAND, District Judge, 47th Judicial Circuit Court of the State of Michigan, Defendant.

Civ. No. 77-72195.

United States District Court, E. D. Michigan, S. D.

January 5, 1979.

John B. Kemp, Raymond L. Morrow, Kemp, Klein, Endelman & Ralls, P. C., Southfield, Mich., for plaintiffs.

John B. Kiefer, Kiefer, Allen & Cavanagh, Detroit, Mich., for defendant.

MEMORANDUM OPINION

CHURCHILL, District Judge.

On September 2, 1977, an individual was arrested on a charge of second degree criminal sexual conduct under M.C.L.A. § 750.520c. The accused's retained defense counsel applied for a suppression order pursuant to M.C.L.A. § 750.520k. This statute provides:

"Upon the request of the counsel or the victim or actor in a prosecution under sections 520b to 520g the magistrate before whom any person is brought on a charge of having committed an offense under sections 520b to 520g shall order that the names of the victim and actor and details of the alleged offense be suppressed until such time as the actor is arraigned on the information, the charge is dismissed, or the case is otherwise concluded, whichever occurs first."

"Actor" is defined as a person accused of criminal sexual conduct. M.C.L.A. § 750.520a(a). "Victim" is defined as a person alleging to have been subjected to criminal sexual conduct. M.C.L.A. § 750.520a(i).¹

It is undisputed that the defendant, in his capacity as a magistrate under the statute, issued a suppression order in statutory terms and made a public announcement that it applied to news media personnel as well as to others. Subsequently, with knowledge of the order, news commentators on a Television Station WXYZ news broadcast disseminated information in apparent violation of the order. It is also undisputed that the defendant would have taken steps to have it determined if the news commentators were in contempt of court but for the temporary restraining order and preliminary injunction issued by this Court.

The plaintiffs' motion for a partial summary judgment declaring M.C.L.A. 750.520k "to be unconstitutional under Federal and State Constitutions" and making permanent the injunctive relief previously granted by this Court's preliminary injunction was taken under advisement on briefs and oral argument.

The defendant opposes entry of a partial judgment, asserting that determination of the constitutionality of the subject statute requires development of an evidentiary record. Although the defendant had a fair opportunity to be represented and to be heard at the hearing for a preliminary injunction, it does appear that he has not had an adequate opportunity to make an evidentiary record with respect to the constitutionality issues. The Court will, nevertheless, grant the motion for a partial summary judgment declaring the statute to be unconstitutional because it is unconstitutional on its face. No fact-findings could save it.

The First Amendment of the Constitution of the United States of America declares that "Congress shall make no law . . . abridging the freedom of speech, or of the press . . ." This amendment applies to the states through the Fifth and Fourteenth Amendments of the United States Constitution. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.Ct. 625, 635, 75 L.Ed. 1357 (1931). Of all possible laws abridging the freedom of speech and the press, "prior restraints . . . are the least tolerable infringement . . ." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802-03, 49 L.Ed.2d 683, 697 (1976).

An order issued pursuant to the statute is a classic example of a prior restraint. As such, it has a heavy presumption against its constitutionality. Nebraska Press Ass'n, supra.

The subject statute has several unique features.

1. Its apparent purpose is to create and protect a limited right of privacy of the accused actor and the alleged victim.²

2. The statutory plan is not well conceived to accomplish its purpose, even if constitutional. It does not restrict disclosure to news media or by news media prior to the actor's arrest.

3. The magistrate is given no discretion. The statutory duty to issue the order upon demand is absolute.

In Nebraska Press Ass'n the United States Supreme Court expressed real concern about the effect of unrestrained publicity upon the accused's right to a fair jury trial. The Supreme Court of the United States nevertheless concluded that the presumption...