No. 89-67
89-94
IN THE SUPREME COURT OF THE STATE OF MONTANA
- - .---
NO. 89-67
STATE, ex rel., GREAT FALLS TRIBUNE
COMPANY, INC., a Montana corporation,
Applicant,
-vs-
MONTANA EIGHTH JUDICIAL DISTRICT
COURT, CASCADE COUNTY, HON. JOHN M.
McCARVEL, DISTRICT JUDGE,
Respondent.
-
No. 89-94
STATE, ex rel., GREAT FALLS TRIBUNE
COMPANY, INC., a Montana corporation,
Applicant,
-vs-
DISTRICT COURT, CASCADE COUNTY, HON.
JOHN M. McCARVEL, DISTRICT JUDGE,
Respondent.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Applicant:
Peter Michael Meloy argued, Helena, Montana
For Respondent:
Hon. Marc ~acicot, Attorney General, Helena, Montana
Dorothy McCarter argued, Asst. Atty. General, Helena
patrick L. Paul, County Attorney, Great Falls, Nontana
Russell H. Jones and ~ e i t hDouglass, Spokane, washington
Submitted: July 1 3 , 1989
Decided: July 26, 1989
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
In these consolidated cases, we conclude that under
Montana law, the public and press have a right of access to
attend judicial hearings conducted to determine whether
probation rights of convicted persons should be revoked; but
that in a proper case such as this, a district court may
close such a judicial hearing to the public and press under
state law without thereby offending the federal constitution.
When such hearings are properly closed to the public and
press, no member of the public or representative of the press
may interrupt the due course of such a hearing in a manner
which might defeat the reason for closure. Such an
interruption of a properly closed judicial hearing
constitutes a contempt of the court.
Cause no. 89-067 arises from an underlying judicial
proceeding in the District Court, Eighth Judicial District.,
Cascade County, wherein the Hon. John M. McCarvel, was
presiding. On a date purposely not specified here, District
Judge McCarvel ordered that a proceeding for the revocation
of the probation of a certain person be closed to the public.
After the incidents occurred v~tlich are reported hereafter,
the Great Falls Tribune, a corporation distributing a
newspaper in Great Falls, Montana, filed its application in
this Court for a writ of supervisory control directed against
the ~istrictCourt to order the transcript of the revocation
hearing to be made available to the Tribune, and to direct
the district judge to refrain and desist from closing future
revocation proceedings, subject to the rulings of this Court
on circumstances which might justify closure.
Cause no. 8 9 - 0 9 4 is based on an application by Great
Falls Tribune Company, Inc. for a writ of review of an order
issued by District Judge McCarvel requiring the Tribune
reporter, Melody Perkins, to appear before him to show cause
why she should not be held for direct contempt of the court.
The application in this Court was filed while the contempt
proceedings in the District Court were pending but the
hearing on contempt was held as scheduled and in the District
Court Judge McCarvel adjudged Melody Perkins guilty of
contempt and fined her in the sum of $ 3 0 0 . 0 0 .
We ordered the two cases consolidated for oral argument
and decision.
Essentially, the issues presented in the consolidated
cases are these:
1. Whether the public and press have a right of access
to attend probation revocation hearings.
2. Whether the District Court erred in closing the
probation revocation hearing without first conducting an
evidentiary proceeding in which the public and press could
participate and without making findings of the reasons for
closure as required by the state and federal constitutions.
3. Whether Melody Perkins was properly found in
contempt.
The transcript of the revocation proceedings in this
particular case has been, and still is, under seal. The
following facts, however, may be stated, either from express
disclosure ordered by us or from a transcript of the contempt
proceeding.
Melody Perkins, a reporter for the Great Falls Tribune,
assigned to cover the county courthouse, entered District
Judge McCarvel's courtroom to observe a probation revocation
proceeding already underway. Before she entered, and before
the revocation proceeding commenced, court and counsel had
met in chambers concerning the probation proceeding, and
thereafter, in open court, the following occurred:
MR. JONES: Thank you, Your Honor. The first
matter, I request this be a closed hearing, that
all non-necessary persons leave the courtroom, and
that the bailiff maintain the security of the
courtroom during the hearing. We have stated our
reasons previously to Your Honor.
THE COURT: Do you want to put them on the record
now, or do you prefer not to?
MR. JONES: I prefer not to. I would be happy tc
make a record, but I prefer not to do it in open
court. Your Honor is aware of our reasons, I
believe. Thank you.
THE COURT: You are concerned for the safety of the
person involved; is that it?
MR. JONES: Yes, Your Honor.
THE COURT: All right. All those in the courtroom
who are not going to participate in this hearing
will be asked to leave.
MS. SCHULKE: Does that include the members of our
office, Your Honor?
THE COURT: No, not the County Attorney's office.
MS. SCHULKE: Can other members of Probation and
Parole be here if they wish to?
THE COURT: Yes. Mary Fay, you can stay if you
want.
MR. JONES: Who is Mary Fay?
MS. SCHULKE: A probation and parole officer here
in Great Falls.
MR. JONES: All right. Thank you, Your Honor.
At the time that Melody perkins had entered the
courtroom, the decision to close the proceeding, as reported
above, had already been made and the probation revocation
hearing itself was ongoing. When she entered, the following
occurred :
MS. SCHULKE: Your IIonor, I recognize a member of
the press here. I don't know her name, but she's
from the Tribune.
THE COURT: This hearing is closed.
MS. NELODY PERKINS: Okay.
Melody Perkins left the court and thereafter telephoned
her employer. She was instructed by the city editor of the
Tribune, Tom Kotynski, to return to the court and there make
a request for the grounds of the closure and for a
continuance of the proceeding so that the Tribune could
contact its attorney. perkins returned as instructed, and
re-entered the courtroom, accompanied by Tom Grirnm, a
television reporter. At this point, the following occurred:
THE COURT: Just a minute--
MS. MELODY PERKINS: Excuse me. As a
representative of the Great Falls ~ribune,I would
like to know on what grounds this hearing has been
closed.
THE COURT: Will you step out? Both of you step
out.
MS. MELODY PERKINS: Your Honor, as a
representative--
THE COURT: Do you want me to call the sheriff and
have him put you out?
MS. MELODY PERKINS: The ~ribunerequests--
THE COURT: Will you call the bailiff?
MS. MELODY PERKINS: We will leave, Your Honor.
Our attorney is being consulted, however.
MR. JONES: Your Honor, I also noticed video-tape
cameras at the doors here. I don't know if
that 's--
MR. DOUGLASS: It's a concern how sound-proof the
doors are. If the video cameras are right up to
the doors with microphones, if they can hear
through, or--
THE COURT: I d~n'tknow.
MS. SCHULKE: Someone from the sheriff's office
will be here.
THE COURT: Get ahold of that guy with the TV
camera there. See him out there, the guy with the
TV camera?
THE BAILIFF: Yes.
THE COURT: I want to find out if he recorded a 1
n7
of this testimony, and tell him he had better not
be using it.
THE BAILIFF: Yes.
THE COURT: Have him brought in here, will you?
MR. TON GRIMM: I'm Tom Grimrn, Channel 3.
THE COURT: Do you have a recorder on that camera?
MR. TOM GRIMM: I haven't captured anything that
happened in this room.
THE COURT: Oh, all right.
MR. JONES: You are just looking through your lens?
MR. TOM GRIMM: I can't hea.r anything in the hall
what's going on inside here,
THE COURT: Okay.
MR. TOM GRIMM: Can I go?
THE COURT: Yes.
MR. PAT PAUL: That other gentleman was an attorney
with another firm in town, and I told him it was
closed.
THE COURT: What?
MR. PAT PAUL: The other gentleman, he was an
attorney with one of the firms in town, and I asked
him to leave. Do you want these guys to stick
around [referring to staff members of the sheriff's
office] ?
THE COURT: Yes.
When the Great Falls Tribune filed its application in
this Court for a writ of supervisory control, the Attorney
General responded by filing a motion for a review of the
transcript of the probation revocation proceeding - camera.
in
The transcript covered the proceeding in court and also the
discussions which had occurred in chambers with the court
before the revccation hearing. The Tribune objected to the
consideration of the sealed transcript by this Court on the
grounds that the Tribune would be at a disadvantage as to the
argument regarding the propriety of the closure. Later this
Court excerpted and made available to all parties the
portions of the sealed transcript above quoted.
Ten days after the revocation hearing, ~istrict Judge
McCarvel issued an order directed to Melody Perkins requiring
her to show cause why she should not be cited for contempt.
Tom Grirnrn, the television reporter was not cited. Melody
Perkins appeared before Judge McCarvel on the date required,
where after a hearing, she was found guilty of contempt and
fined $300.00.
RIGHT OF ACCESS TO PROBATION REVOCATION HEARINGS
--
The united State Supreme Court recognizes a ~ i r s t
Amendment right of public access to criminal trials.
Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555,
100 S.Ct. 2814, 65 L.Ed.2d 973; Globe Newspaper Company v.
superior Court (1982), 457 U.S. 596, 102 S.Ct. 2613, 73
L.Ed.2d 248. The Supreme Court has also held that the sixth
Amendment right to a fair trial is a right personal to the
defendant and not to the public. Gannett Company, Inc. v.
DePasquale (1979), 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d
608. Although the Supreme Court has not yet interpreted the
First Amendment to require public access to civil trials,
several federal courts of appeals have taken that step.
~ublicker ~ndustries,Inc. v. Cohen (3d ~ i r .1984) , 733 F.2d
1059, 1070; Matter of Continental ~llinois securities
Litigation (7th Cir. 1984), 732 F.2d 1302, 1308; Brown and
~illiamsonTobacco Corp. v. F.T.C. (6th Cir. 19831, 710 F.2d
1165, cert.den. 104 S.Ct. 1595 (1984).
Here, the Attorney General points out that a probation
revocation hearing is not a criminal proceeding, State v.
Watts (Mont. 1986), 717 P.2d 24, 43 St.Rep. 670; State v.
Robinson (1980), 190 Mont. 145, 619 P.2d 813, and argues that
because a probation revocation proceeding involves neither
the guilt of the defendant nor the imposition of sentence,
the interest of the defendant in obtaining a fair trial plays
no part in such a proceeding. ~ccordingly, the Attorney
General contends that the primary interest that competes with
the public right to know in this type of proceeding is the
probationer's right of privacy.
The state constitution of Montana contains in Art. 11, S
9, the "right-to-know" provision as follows:
No person shall be deprived of the right to examine
documents or to observe the deliberations of all
public bodies or agencies of state government and
its subdivisions, except in cases in which the
demands of individual privacy clearly exceed the
merits of public disclosure.
We held in State ex rel. Tribune v. District Court
(1980), 186 Mont. 433, 608 P.26 116, that the foregoing
constitutional provision speaks for itself and applies to all
persons and all public bodies of the state and the
subdivisions without exception. Moreover, the provisio~
applies to civil judicial proceedings, Cox v. Lee
Enterprises, Inc. (Kont. 1986), 723 P.2d 238, 43 St.Rep.
1476. Since the days of the Bannack statutes, the sittings
of all courts by statute in Montana have been required to be
public. Section 3-1-312, MCA.
It is clear to us, therefore, that the public and the
press have the right under state law to attend and observe
with limited exception the hearings of the courts of this
state. The press also enjoys this right through its
individual representatives and because of its surrogate role
for the public. Richmond Newspapers, Inc. v. ~irginia
(1980), 448 U.S. at 572, 573, 100 S.Ct. at 2825, 65 L.Ed.2d
at 987. The state exception to this right occurs only in
cases in which the demands of individual privacy clearly
outweigh the merits of public disclosure. Art. 11, $ 9,
supra.
RIGHT OF THE PUBLIC AND THE PRESS TO PARTICIPATE IN THE
CLOSURE DECISION
-
This Court received the transcript of the probation
revocation proceeding from the District Court under seal.
The transcript was examined by us - camera and upon such
in
examination we determined not to grant the motion of the
Great Falls Tribune to unseal the transcript record.
Instead, we directed the parties to brief the issues in these
cases by assuming as a premise the following facts:
The District Court closed the revocation hearing to
the press and public to protect a person from harm
which might otherwise occur if the revocation was
made public.
In the stated premise, we did not use the term "physical
harm" hut counsel for the Tribune interpreted correctly that
that was what was meant. Counsel conceded on oral argument
that such an assumed premise would be a proper reason for the
court to order closure of the proceeding.
The Tribune, however, argues along other lines as to the
propriety of the closure. It contends that before the
closure was ordered, the court should have provided some
notice to the public of its intention to close; then conduct
an evidentiary hearing in which the public and press can
participate; and, make express findings of fact as to the
reasons for the closure. The Tribune points to the rule in
the Court of Appeals of the Third Circuit, where no order
closing civil or criminal proceedings may be entered by any
federal district court judge until notice of the closure is
given to the press and public. U.S. v. Criden (3d Cir.
1982), 675 F.2d 550. The lack of such a rule here, contends
the Tribune, causes the ~ribune to bear the burden of
attacking the propriety of the District Court's decision to
close, when that burden should have remained on the
particular defendant involved.
The argument of the Great Falls Tribune finds precedent
in State ex rel. Daniel Paul smith v. District Court, ~ i g h t h
~udicialDistrict (1982), 201 Mont. 376, 386, 654 P.2d 982,
988. In Smith, ve dletermined that a closure of a pretrial
7
suppression hearing should occur only if there were a "clear
and present danger" to defendant's fair trial and no
reasonable alternative means could be utilized to avoid the
prejudicial effect of such information. The holding in smith
modified, to some extent, our previous holding in Great Falls
Tribune v. ~istrictCourt, supra, which adopted a strict and
irreparable necessity standard for closure, "where the
demands of individual privacy clearly exceeded the merits of
public disclosure." 186 Mont. at 441, 608 P.2d at 119.
However, with respect to the right-to-know provision of the
Montana ~onstitution,t-his Court stated in The ~issoulianv.
Board of Regents of Higher ÿ ducat ion (1984), 207 Mont. 513,
529, 675 P.2d 962, 971:
However, the right to know is not absolute. The
more specific closure standard of the
constitutional and statutory provisions requires
this Court to balance the competing constitutional
interests in the context of the facts of each case,
to determine whether the demands of individual
privacy clearly exceed the merits of public
disclosure. Under this standard, the right to know
may outweigh the right of individual privacy,
depending on the facts. (Emphasis in original.)
Whenever the court must determine whether a privacy
interest is protected under the state constitution, we apply
a two-part test: (1) whether the person involved had a
subjective or actual expectation of privacy; and,
(2) whether society is willing to recognize that expectation
as reasonable. Montana Human Rights ~ivision v. city of
~illings (1982), 199 Mont. 434, 441, 649 P.2d 1283, 1287.
~pplying that test here, when the ~istrictCourt determined
that the person involved must be protected from physical harm
arising from participation in the proceeding, the subjective
expectation of that person to privacy was established. The
second prong of the test is met because the risk to the
person's individual safety from disclosing adverse
information to the public would compel a reasoneble person to
recognize the expectation of privacy.
It should be noted that the competing interests here
differ in large respect from competing interests involved in
other cases. Thus, in Great Falls Tribune, supra, the right
to know was weighed against the defendant's right to a fair
trial. In State - -
ex rel. Daniel Smith, supra, this Court held
that the defendant's right to a fair trial would be paramount
to the public's right to know if disclosure of the pretrial
suppression hearing ~rould affect his fair trial-. In The
Missoulian v. Board of Regents (1984), 207 Mont. 513, 675
P.2d 967, the Board of Regents was required to balance the
public's right to know against the individual's right of
privacy with respect to employment evaluations. There the
right of individual privacy was held to be paramount.
It is true, however, that the law requires that if
closure of a portion of a judicial proceeding is necessary,
the procedure imposing the least restriction on the public
right to know should be followed. In The Missoulian v. Board
of Regents, supra, this Court did address possible
alternatives to closure of job performance evaluation
meetings, and determined that there was no adequate
alternative which would preserve the privacy of the
individual and at the same time prevent the evaluations from
being effective. That kind of consideration applies to the
case at bar. Any leaking out of the information would
endanger the physical safety of a person involved. There
were no reasonable alternatives that the ~istrictCourt could
follow here. For that reason, we hesitate to adopt the ~ h i r d
circuit rule that notice must be given of all potential
closure decisions, and would rather allow the district courts
to proceed on an - - basis to make the decision in
ad hoc
accordance with the facts and circumstances facing the
district courts at the time. ~ustice ~ehnquist (now Chief
Justice) in Gannett Company, Inc. v. DePasquale (1979), 443
U.S. at 405, 99 S.Ct. at 2918, 61 L.Ed.2d at 637, in
cautioning that there was no set procedure to be employed by
a trial court to determine whether or not a part of the trial
court should be closed, stated:
.
. . To the contrary, in my view, and, I think,
in the view of the majority of this Court, the
lower courts are under no constitutional constraint
either to accept or reject these procedures. They
remain, in the best tradition of our federal
system, free to determine for themselves the
question of whether to open or close the
proceeding. Hopefully they will decide the
question by accommodating competing interests in a
judicious manner but as far as the constitution is
concerned, the question is for them and not us to
resolve.
From the foregoing discussion, it will be seen that
there is no reason now for this Court to reverse the closure
order of the District Court. The Tribune concedes that the
reason for closure was proper. The additional relief
requested by the Tribune in the application for supervisory
control is likewise not suitable in the present context. The
application for supervisory control must therefore be denied.
We come, therefore, to the question of whether the
decision of the District Court in the conternpt proceedings
should be affirmed, modified or reversed.
Usually on a petition for a writ of certiorari to review
a contempt order, if we did not have before us the aggrieved
person, we would be constrained to dismiss the application.
Here, however, we adopt as a premise that through the
contempt order, the Great Falls Tribune itself is the
aggrieved entity.
On an application of a writ of certiorari to review a
contempt order of the District Court, our review is limited
to an examination of the record to determine whether the
District Court acted within its jurisdiction, and whether the
evidence supported the finding and order of contempt.
Schneider v. Ostweld (1980), 617 P.2d 1293. In such a
review, we are limited to the record compiled before the
District Court. State ex rel. Sell v. District Court (1916),
52 Mont. 457, 158 P. 1018.
The record here is clear. The District Court had
ordered a closure for a probation revocation proceeding
because of the possibility that if information developed in
the proceeding became known to the public, there was danger
of harm to a person involved. All sides admit that the order
of closure was providently granted.
Melody Perkins, as a reporter for the Great Falls
Tribune, entered the courtroom where the revocation
hearing was ongoing, and was then advised by the District
Court that the proceedings had been closed. The reporter
said, "Okay," and retreated from the courtroom.
At this point, no person, including representatives of
the press, had any right to intrude further upon the judicial
proceeding unless within the number of those persons excepted
under the closure order of the court. Notwithstanding,
Melody Perkins, on the direction of her editor, re-entered
the court in the company of another person, interrupted the
judicial proceeding, and eventually left the courtroom on the
threat of expulsion by the ~istrictCourt through a bailiff.
Other options were open to Melody perkins and the Great
Falls ~ribunewhen first she learned of the closure and left
the courtroom. She, or a representative of the Tribune,
could have gone to the district judge, in chambers or in open
court following the closed hearing, and requested the reasons
for closure. A letter could have been written to the
district judge following the closed hearing requesting the
reasons. A petition for a writ filed in this Court (a
procedure followed here by the Tribune) would have resulted,
as it did, in disclosure of the reasons for closing the
hearing. We affirm the right of the public and the press to
learn from the ~istrict Court the reasons for closure when
the demands of individual privacy clearly exceed the merits
of public disclosure. That right, however, is not so broad
as to include interruption of the closed proceeding itself,
especially when interruption at a critical time might void
the reason for the closure.
Under S 3-1-402, MCA, every judicial officer has the
power to preserve and enforce an order in his immediate
presence and in a proceeding before him when he is engaged in
the performance of an official duty, and to compel obedience
to his official orders. For the effectual exercise of those
powers, a judicial officer may punish for contempt. Section
3-1-403, MCA.
Contempt of a court of justice or a proceeding therein
occurs through "disorderly, contemptuous or insolent behavior
toward a judge while holding the court, tending to interrupt
the due course of a trial or other judicial proceeding;" "a
breach of the peace tending to interrupt the due course of a
trial or other judicial proceeding;" or "disobedience - any
of
lawful judgment, order or process of the court." Section
3-1-501, MCA. (Emphasis added.)
Under the statutes, the District Court Judge here acted
within his jurisdicticn on a contempt charge for a disorderly
action that occurred before him which tended to interrupt his
judicial proceeding and which appeared to be in disobedience
to his order that the hearing was closed. The penalty is
within the provisions of S 3-1-519, MCA. Under the
circumstances, the judgment of contempt must be sustained, as
no grounds can be found to justify the issuance of a writ of
certiorari directing otherwise.
Accordingly, both the application for writ of
supervisory control and the application for writ of
certiorari are denied.
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We Concur: A
-
Justices
Justice R. C. McDonough specially concurs.
I concur with the majority opinion. However, inasmuch
as most hearings are closed at the request of both parties,
or without objection by the non-requesting party, some
accountability for such a grave discretionary step is
warranted in the interest of participatory government. I
favor the adoption of a rule which in essence would require
the District Court Clerk to file an annual public report with
this Court, stating at a minimum: (1) the number of
discretionary closings, (2) the type of each case, and ( 3 )
the judge presiding. A copy of this report would be
available to the public in each clerk's office.
Mr. ~ustice~illiamE. Hunt, Sr, dissenting.
I dissent and would reverse and throw out the contempt
charges against the reporter. This nation was founded upon
the idea that all governmental proceedings should be
conducted in the open under the scrutiny of the public eye.
I therefore cannot sign the eloquent and thorough majority
opinion because, however practical its reasoning, it
reinforces the trend toward excluding private citizens from
participation in their government.
When a judge determines that a closed hearing is
appropriate, as the judge did here, it is up to him or her to
ensure that members of the public cannot enter the courtroom.
A member of the public entering an ineffectively closed
courtroom would certainly disturb the proceedings and each
entry would require a statement of the judge that the hearing
was closed. Any inquiry by the citizen as to why he or she
had to leave would subject him or her to contempt of court
charges.
If the judge in this case had positioned a bailiff at
the courtroom door or had posted a sign notifying the public
that the proceeding was closed, this incident could have been
prevented. If the newspaper editor, when notified of the
closure, had followed the procedures set forth in the
majority opinion to determine the purpose of the closure
rather than sending his reporter back into the skirmish, the
confrontation could have been averted. I fear that Melody
perkins was merely a pawn in the game between the press and
the court.
And the consequence of this game? A case that holds
that any member of the public can be ousted from a secret
governmental meeting that appears to be an open meeting and
subsequently cannot return to what still appears to be an
open meeting and ask why. Whatever her motive or reason for
returning, when she respectfully and quietly reentered the
courtroom, Melody perkins was exercising a right she had as a
citizen. The exercise of that right in that manner cannot
be contempt. I would dismiss and throw the whole affair out
of court.