Baltimore Sun Co. v. Colbert

MURPHY, Chief Judge. The primary questions presented are (1) whether the press and the public are entitled to prior notice of, and an opportunity to oppose, an oral motion to close a courtroom ²⁹⁵ during a pretrial proceeding in a criminal case and (2) whether the court’s hearing on the closure motion, and its sealing of a related written motion, satisfied the requirements of the First and Fourteenth Amendments to the United States Constitution and Article 40 of the Maryland Declaration of Rights. 1 I. Tyrone Michael Colbert was charged in the Circuit Court for Howard County with first degree murder, armed robbery, use of a handgun in the commission of a felony, and carrying a concealed deadly weapon. Trial was scheduled for December 3, 1990. Previously, the State had filed notice of its intention to seek the death penalty and, in the alternative, life without the possibility of parole.

On November 29, 1990, Colbert filed a “Motion to Enforce Terms of Plea Bargain Agreement or Alternatively to Strike the State’s Notice to Seek Death Penalty or Life Imprisonment Without Parole.” The motion was not docketed at that time and was subsequently sealed by the court. Pretrial hearing on the motion was scheduled that same day. After a bench conference with counsel at the commencement of the hearing, 2 the court (Kane, J.) announced that Colbert had asked it to exclude the public from the hearing on his motion. The State opposed exclusion.

The court stated that it was aware of the subject matter underlying the motion, and would “evaluate the public’s right to know about the issue against this Defendant’s right to a fair trial which might be somehow impacted upon the subject matter of the proceeding that’s before the court.” The court found that “the subject matter of this particular motion is such ²⁹⁶ that ... in balancing the rights of the public to know against the rights of the Defendant, the rights of the Defendant ultimately to a fair trial mandate that I exclude the public and press from this particular hearing.” Michael J. Clark, a reporter for the Baltimore Sun Company who was present in the courtroom, voiced his opposition to closure of the court and said that he would immediately procure counsel. The court responded that it would proceed with the closed hearing, and that when counsel for The Sun arrived, he would hear their arguments in opposition to closure. The court then ordered the exclusion of everyone from the courtroom, except for the parties and counsel. Witnesses were ordered to remain outside of the courtroom until called to testify.

Proceedings closed to the press and the public on Colbert’s written motion then commenced. Counsel for Michael J. Clark and The Sun appeared in court to oppose the closure. She stated that she had been informed of the closure at approximately 3:00 p.m., arrived at the courtroom at approximately 4:00 p.m., and was admitted at approximately 6:00 p.m. She asked that The Sun be allowed to intervene for the limited purpose of asserting its and Clark’s rights under the First Amendment and the Maryland Declaration of Rights to attend pretrial criminal proceedings.

Counsel asked the court to articulate its reasons for closing the courtroom. The court responded that it had balanced the public’s “right to know" against the defendant’s right to a fair trial and concluded that “the Defendant’s right to a fair trial mandated that a certain portion of the hearing not be conducted in the presence of the public.” The Sun then moved that it be informed of the subject matter of the closed proceeding, and that its reporter be provided with a tape recording of the proceedings and access to Colbert’s undocketed motion. These motions were denied. ²⁹⁷ The Sun promptly appealed. We issued a writ of certiorari before consideration of the appeal by the intermediate appellate court to address the important issues raised in the case.

II

The Sun contends that it has a constitutional and common law right to attend pretrial hearings in pending criminal cases and to inspect pleadings. It avers that the trial court violated these rights when it failed to provide timely notice of the courtroom closure and afford it the opportunity to oppose closure prior to the exclusion of the public. It suggests that the closure itself was improper because the trial court failed to either make the findings of fact necessary to justify closure of the courtroom or to consider alternatives to closure. The Sun further asserts that the court’s order that participants in the closed hearing not discuss what occurred violates the First Amendment and is a prior restraint on speech and, as such, carries a heavy presumption of constitutional invalidity.

Colbert responds that the trial court acted properly when it closed the hearing. He argues that the court provided the reporter and The Sun with an opportunity to object to closure and to procure counsel, and that nothing more was required. Colbert also contends that the court did not err in declining The Sun’s request that it describe the nature of the hearing. He contends that where public articulation of the reasons for closure would frustrate the purpose of the closure, a detailed description of the reason for closure is not required.

III

There is a presumptive right of access to pretrial proceedings in criminal cases. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 , 100 S.Ct. 2814, 2825 , 65 L.Ed.2d 973 (1980), the Supreme Court held for the first time that the First and Fourteenth Amendments to the ²⁹⁸ United States Constitution guarantee that criminal trials are presumptively open to the public. It said: “In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees.” Id. at 575 , 100 S.Ct. at 2826 . The Court predicated the presumptive right of access on both the history of open criminal proceedings, and on the role that access plays in the function of the judicial process.

Id. at 569-73 , 100 S.Ct. at 2823-26 . These historical and functional considerations have subsequently been applied to extend a right of access to voir dire proceedings, Press-Enterprise Co. v. Superior Court, 464 U.S. 501 , 104 S.Ct. 819 , 78 L.Ed.2d 629 (1984) (Press-Enterprise I); preliminary hearings before a magistrate in a criminal case, Press-Enterprise Co. v. Superior Court, 478 U.S. 1 , 106 S.Ct. 2735 , 92 L.Ed.2d 1 (1986) (Press-Enterprise II); and pretrial suppression hearings, Buzbee v. Journal Newspapers, Inc., 297 Md. 68 , 465 A.2d 426 (1983). In Press-Enterprise II, the Court used a two-prong test in determining whether a qualified right of access attaches to a judicial proceeding. The first consideration is “whether the place and process have historically been open to the press and general public.” 478 U.S. at 8 , 106 S.Ct. at 2740 .

The second is “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. The Court concluded that “[i]f the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches.” Id. at 9 , 106 S.Ct. at 2740 . Applying the two-prong test to preliminary proceedings in criminal cases, the Court noted that it is nearly uniform practice for both state and federal courts to conduct preliminary criminal proceedings in open court. The Court evidenced the historical foundation of this practice by referencing the pretrial probable cause hearing in the celebrated treason trial of Aaron Burr in 1807.

The hearing was held in the Hall of the House of Delegates in Virginia because ²⁹⁹ the courtroom was too small to accommodate the number of interested citizens. Thus, the Court concluded that “[o]pen preliminary hearings ... have been accorded ‘the favorable judgment of experience.’ ” Id. at 11 , 106 S.Ct. at 2742 (quoting Globe Newspaper v. Superior Court 457 U.S. 596, 605 , 102 S.Ct. 2613, 2619 , 73 L.Ed.2d 248 (1982)). As to the second prong of the test, the Court found that public access to preliminary proceedings plays a significant role in the function of the judicial process. Because preliminary proceedings frequently determine the result in a criminal proceeding, it said that they may present the only opportunity for the public to observe the judicial process.

Id. 478 U.S. at 12 , 106 S.Ct. at 2742 . Open pretrial hearings in criminal cases provide a therapeutic value for the community by enabling the public to observe law enforcement. Id. at 13 , 106 S.Ct. at 2742 . The Court concluded that the First Amendment affords the public a qualified right of access to preliminary hearings in criminal cases.

Anticipating the two-prong test applied in Press-Enterprise II, we held in Buzbee v. Journal Newspapers, supra, 297 Md. at 76 , 465 A.2d 426 , that there is a qualified right of access to pretrial proceedings in criminal cases “predicated on the First and Fourteenth Amendments and on Article 40 of the Maryland Declaration of Rights.” Id. 3 While the openness of pretrial proceedings in criminal cases is not supported by centuries of tradition, id. at 77, 465 A.2d 426 , the practice in Maryland has been that pretrial motions in criminal cases are presumptively open. Id. at 78 , 465 A.2d 426 . We noted that access to pretrial proceedings plays a significant role in the function of the judicial process. Judge Rodowsky, writing for the Court, observed that “[i]f members of the public are to be able to evaluate the work of trial judges, prosecutors, and public defenders in the criminal justice system, there must be access to pretrial ³⁰⁰ proceedings which are the only proceedings had in the great mass of criminal cases.” Id. at 80 , 465 A.2d 426 .

A. The right of access to pretrial criminal proceedings, however, is not absolute. Globe, supra, 457 U.S. at 606 , 102 S.Ct. at 2619 ; Buzbee, supra, 297 Md. at 80 , 465 A.2d 426 . Exclusion of the public from a courtroom is an extreme remedy and should be used only in limited and unusual circumstances. “Closed proceedings ... must be rare and only for cause shown that outweighs the value of openness.” Press-Enterprise I, supra, 464 U.S. at 509 , 104 S.Ct. at 823 . A court’s case by case determination concerning whether conditions are present which permit closure requires that representatives of the press and the general public “ ‘be given an opportunity to be heard on the question of their exclusion’ ”.

Globe, supra, 457 U.S. at 609 n. 25, 102 S.Ct. at 2621 n. 25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 , 99 S.Ct. 2898, 2916 , 61 L.Ed.2d 608 (1979) (Powell, J. concurring)). Adequate public disclosure of a motion for closure is particularly important because, without it, the public’s right of open access to courtrooms might not be asserted by parties to a particular proceeding. Accordingly, a motion to exclude the public from a pretrial hearing in a criminal case requires a public disclosure of the filing to permit the public to assert its right of access. Consequently, for the public to be able to assert this right in a meaningful fashion, the motion must be docketed in advance of the time of the hearing to provide notice to afford an opportunity to oppose the closure motion, as well as to present alternatives to closure.

The court should provide individuals opposing closure an opportunity to object and to state the reasons for that opposition before ruling on the closure motion. See, e.g., New York Times v. Demakos, 137 A.D.2d 247 , 529 N.Y.S.2d 97, 100 (1988); In Re Times World, 7 Va.App. 317 , 373 S.E.2d 474, 478 (1988); In Re Globe Newspaper Co., ³⁰¹ 729 F.2d 47, 56 (1st Cir.1984); In Re Knight Pub. Co., 743 F.2d 231, 234 (4th Cir.1984); In Re Iowa Freedom of Information Council, 724 F.2d 658, 661 (8th Cir.1984); Newman v. Graddick, 696 F.2d 796, 802 (11th Cir.1983); State v. Williams, 93 N.J. 39 , 459 A.2d 641, 658 (1983); Application of the Herald Co., 734 F.2d 93 (2nd Cir.1982); United States v. Criden, 675 F.2d 550, 557-60 (3rd Cir.1982); United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir.1982); Matter of Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 442 , 423 N.Y.S.2d 630 , 399 N.E.2d 518 (1979). However, we emphasize that, as stated in United States v.