Media must attempt to intervene before appealing closure orders

From the Summer 2000 issue of The News Media & The Law, page 42.

A sharply divided state Supreme Court ruled on April 19 that the news media must file a motion to intervene in a case in which a judge has closed a courtroom before requesting that an appellate court reverse the trial judge.

In a 4-3 decision, the court ruled that the efforts of newspapers in two recent cases to open up preliminary hearings in juvenile and domestic relations courts failed because the media sought review of the trial court’s decisions without first formally trying to intervene.

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Bedford County Juvenile and Domestic Relations Judge A. Burke Hertz scheduled a joint preliminary hearing in November 1998 in two cases involving murder charges against juvenile suspects. Counsel for both juveniles requested that the court exclude the public and news media from the hearing under a state statute that provides that juvenile hearings are presumptively closed other than in certain cases, including cases in which a juvenile aged 14 or older is charged with committing an offense that would be a felony if committed by an adult. Nevertheless, the trial court can close any proceeding if the court states in writing its reasons for closure and makes those statements part of the public record.

The commonwealth’s attorney took no position on the closure motion. The lawyers for the juveniles neither provided the public with notice of the closure motion nor presented any evidence in support of it. They told the court that an open hearing “would affect quite seriously . . . potential jury selection in this case,” that a closed hearing was necessary because of the “violent nature” of the alleged crimes and the seriousness of the “potential punishment” that could be imposed upon their clients, and that photographs of the juveniles in “protective gear” could affect the “potential selection of the jury process.”

The court granted the closure motion, stating that “the court is very sympathetic to the public interest that this matter has engendered, [and] the public’s right to know as much as possible about matters of this nature is most important, but this court believes that the rights of the defendant as expressed by counsel transcend the right of the public to know and therefore we will order at this time that the media be excluded and that the hearing be closed except to those subject to family members and relations and that sort of thing,” the court stated. “I do not want to inhibit these defendants’ rights in any way when it comes time for jury selection.”

After the court made its ruling, Terry Scanlon, a newspaper reporter for the Lynchburg News & Advance, informed the court that he had forwarded a letter to court personnel requesting access to the hearing and that his request had not been denied. The court responded that it had not been involved in this communication and the court would not change its ruling.

Shannon Harrington, a newspaper reporter for The Roanoke Times, then identified himself to the court and requested a continuance until counsel for his employer could appear to present “strong arguments” against closure. The court rejected Harrington’s request. During a recess, counsel for Harrington and The Roanoke Times contacted the court by telephone and requested an opportunity to present legal argument against closure, but the court refused the request. Counsel did not, however, make a motion to intervene in the proceedings.

The court entered a closure order in each juvenile defendant’s case record. Each order stated that the preliminary hearing was closed to the public because of a “motion of defense counsel alleging jeopardy to client’s right to a fair trial.” Neither order recited any findings of fact.

Times-World Corporation, which publishes The Roanoke Times, Virginia Newspapers, Inc., which publishes the Lynchburg News & Advance, and Richmond Newspapers, Inc., which publishes the Richmond Times-Dispatch, along with each newspaper’s respective reporter who attended the preliminary hearing, filed a “joint petition for the writ of mandamus” in the Circuit Court, asking the court to reverse the juvenile court’s ruling under Virginia statutes, the First Amendment of the U.S. Constitution and Article I, Section 12, of the Virginia Constitution. The state attorney general responded by asserting that the newspapers waived their right to complain by not intervening in the trial court.

The circuit court found in favor of the newspapers. It held that “appropriate interpretation and application of [the state closure statute] constitute ministerial duties and not discretionary acts.” The circuit court’s order required the filing of a transcript of the preliminary hearing in the public record of that court. Judge Hertz appealed to the state Supreme Court.

Meanwhile, in May 1999, Brunswick County Juvenile and Domestic Relations District Court Judge Leslie L. Mason conducted a consolidated preliminary hearing in two cases involving charges against the Alberta chief of police and a local electrician of aggravated sexual assault and sodomy against juveniles. Before the hearing, Richmond Newspapers and its reporter, Jamie Ruff, filed a “motion for an open preliminary hearing.”

In response, the commonwealth’s attorney filed a motion for a closed hearing under a different statute than the law at issue in the Hertz case, which specifically authorizes closure for hearings involving sexual crimes. The Commonwealth did not present any evidence in support of its motion, merely arguing that the victims of the sexual crimes were between the ages of nine and 17 and that their identities should be closely guarded. The court granted the motion to close the hearing, concluding that some of the witnesses were as young as five years of age and that the court was required to consider the interests of these children.

Richmond Newspapers and Ruff filed a petition for writ of mandamus against Judge Mason in the Circuit Court, alleging that the court had violated their rights guaranteed by the First Amendment to the U.S. Constitution and Art. I, Section 12, of the Constitution of Virginia. The attorney general responded by arguing that mandamus was not an appropriate remedy. The circuit court found in favor of the newspapers, directing the juvenile and domestic relations district court “not to close [its] courtroom without making and articulating the findings required by law so that a reviewing court can determine that the closure was proper,” and required that transcripts of the preliminary hearing be made a part of the public record. Judge Mason appealed to the state Supreme Court. The court consolidated both cases for appeal.

The attorney general argued that the circuit courts erred in issuing the writs of mandamus because mandamus is not a remedy that can be used to challenge a judge’s decision granting a motion to close a preliminary hearing in a juvenile and domestic relations district.

In a 4-3 decision issued April 21, the state Supreme Court agreed with the attorney general’s arguments, finding that the newspapers could have intervened in the preliminary hearings for the limited purpose of asserting their objections to the juvenile and domestic relations district courts’ rulings barring them from the courtrooms. Had motions been presented to them, the juvenile and domestic relations district court judges would have been required to grant them and consider the newspapers’ objections to closure.

The court went on to note that the “motion for open preliminary hearing” filed by Richmond Newspapers in Judge Mason’s court does not constitute the requisite formal motion to intervene.

The three dissenting judges contended that the majority opinion failed to provide an adequate remedy for a denial of the media’s First Amendment rights by requiring the news media to intervene in hearings and then to appeal any adverse order that may have been entered by the trial courts.