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 AJR  Columns :    THE PRESS & THE LAW    

From AJR,   October 1999  issue

A Major Victory for the News Media   

The California Supreme Court says most civil proceedings should be open.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

Not many state court decisions can be characterized as earthshaking. But a July 27 ruling of the California Supreme Court, holding that the press and public enjoy a constitutional right to attend civil trials, can be expected to send shock waves.

In a series of opinions in the 1980s, the U.S. Supreme Court decreed that the First Amendment creates a presumption that criminal proceedings must be open. Although several lower courts, both state and federal, extended that principle to civil matters, the high court has not done so. Consequently, many trial judges have come to believe that it is appropriate to conduct civil proceedings in secret.

That's what happened in a high-profile lawsuit brought by actress Sondra Locke against Clint Eastwood that went to trial in 1996 in Los Angeles County Superior Court. Locke claimed that after their long-running romantic relationship ended in 1989, Eastwood violated commitments he had made to assist her in a film production career. She sought millions of dollars in compensation.

The case attracted significant media attention. Presiding Judge David M. Schacter wrote that he feared the jury would be tainted by press accounts--particularly reports on the substance of hearings held outside the jury's presence. So Schacter ordered all those hearings closed. He further directed that transcripts of the secret sessions be made public only after the trial ended. KNBC, the Los Angeles Times and California Community News, then a Times Mirror subsidiary, immediately challenged the orders, claiming they violated federal and state constitutions. The media contended that other alternatives, such as sequestration, could prevent the jury from being exposed to press reports.

But the trial judge rejected their arguments. He said secrecy in this case would be a "very, very small intrusion on the First Amendment" and was more than justified by the need to protect the litigants' rights. The three media companies filed an emergency appeal with a mid-level state appeals court, arguing that Schacter's orders had failed to adequately justify the closure or to explain why other alternatives would have been inadequate to address his concerns. The appellate court agreed, ordering Schacter to vacate the orders and to promptly release transcripts of the secret sessions unless he made findings on the record to support keeping them sealed.

The trial went forward, and Locke and Eastwood settled their suit in late September 1996 while the jury was still deliberating. But KNBC's case went up to the California Supreme Court, which agreed to decide the central question of whether the public has a constitutional right to access civil proceedings. The unanimous ruling written by Chief Justice Ronald George held that the First Amendment right of access and the constitutional standards governing court closures apply to "ordinary" civil trials.

In a detailed opinion, George traced the history of the Anglo-American presumption of open courts and what he characterized as the "general" right of access to civil trials and related proceedings. This promotes the public's interest in observing and assessing the performance of the legal system, he wrote.

The high court dismissed the argument that civil cases are private disputes. "A trial court is a public governmental institution," George wrote, and parties utilizing it must expect that their cases will be tried in public. Schacter's contention that the public has no right to attend proceedings held outside the presence of the jury has long been rejected in this country, George added. In any event, the secret sessions in this case were part of the trial process and subject to constitutional requirements because they addressed substantive issues.

The trial judge had an obligation to provide notice of a proposed closure before shutting the public out, the opinion said. He was required to hold a hearing to determine whether secrecy was justified by an overriding interest that would be jeopardized by an open proceeding, whether the closure order was narrowly tailored, and whether some method less restrictive than closure would protect the interest. Warnings to jurors not to read or watch media accounts of the trial would be presumed a less restrictive way to deal with possible jury contamination. Schacter's decision to withhold the transcript was rejected as well.

The state court did not rule that every type of civil proceeding had to be open and acknowledged that justifying secrecy might burden some trial judges. "But courts can and should minimize such inconveniences by proposing to close proceedings only in the rarest of circumstances," it concluded. The opinion recognizing a constitutional right of access to civil proceedings should be required reading for all trial judges. It's a "10" on the Richter scale.