Journal v. Delaney

RAPID CITY JOURNAL, ASSOCIATED PRESSand SOUTH DAKOTA NEWSPAPER ASSOCIATION, Applicants,

v.THE HONORABLE JOHN J. DELANEY, SOUTH DAKOTA SEVENTH CIRCUIT COURT JUDGE, Respondent.

#25631-JKM

2011 S.D. 55

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

ARGUED ON MARCH 21, 2011

OPINION FILED: September 7, 2011

ORIGINAL PROCEEDING

JON E. ARNESON

Sioux Falls, South Dakota

Attorney for applicants

Associated Press and

South Dakota Newspaper

Association.

RODNEY SCHLAUGER of

Bangs, McCullen, Butler,

Foye and Simmons, LLP

Rapid City, South Dakota

MARTY J. JACKLEY

Attorney General

Attorneys for applicant

Rapid City Journal.

JEFFREY P. HALLEM

HAROLD H. DEERING, JR.

Assistant Attorneys General

Pierre, South Dakota

Attorneys for respondent.

MEIERHENRY, Retired Justice

[¶1.] This is an original proceeding for an alternative writ of mandamus or prohibition brought by the Rapid City Journal, the Associated Press, and the South Dakota Newspaper Association (collectively referred to as the Media) against the Honorable John J. Delaney, circuit court judge. The Media brought this action because Judge Delaney (1) imposed a gag order on the parties and (2) closed the trial and court records in a civil action involving the shareholders of Bear Country USA, Inc. The Media now requests that we grant a permanent writ of mandamus or prohibition requiring Judge Delaney to rescind "both the participant gag order and closure order and prohibit[ ] him from enforcing either."¹ Background

[¶2.] Bear Country is a family-owned South Dakota corporation. The underlying action involved a dispute among Bear Country's family-member shareholders concerning the management and control of the business. The family-member shareholders were split into two factions. Because the two factions could not agree on the management and direction of Bear Country, they asked Judge Delaney to determine Bear Country's value so that one faction could buy out the other.

[¶3.] Before trial, the two factions anticipated submitting financial records and expert testimony on Bear Country's value as part of the evidence. Both factions submitted motions to close the courtroom when the financial information and testimony was to be presented on Bear Country's value. The parties claimed that the proceedings needed to be closed to protect "confidential business information."Neither side objected. Judge Delaney entered an order that (1) imposed a gag order on the parties and (2) closed the trial and court records. This order indicated that it was to protect Bear Country's "financial information," "proprietary and financial matters," and "trade secrets and proprietary information."

[¶4.] After learning of Judge Delaney's order, the Media moved to intervene. The Media asserted that Judge Delaney did not have the authority to impose a gag order and close court proceedings and records. Judge Delaney rejected the Media's arguments. The Media then petitioned this Court for a writ of mandamus or prohibition. The Media asserted that Judge Delaney's gag order "unlawfully interfered with Media's First Amendment right to gather and report the news." The Media also asserted "that Judge Delaney's order excluding them from most of the court trial and court record improperly infringed on their qualified First Amendment and common law right of access to courts, trial participants and record."

[¶5.] After reviewing the Media's petition, we granted the alternative writ because the Media did not have "a plain, speedy and adequate remedy in the ordinary course of law." We ordered Judge Delaney to show cause why the "writ should not be made permanent and why this Court should not enter a peremptory writ of mandamus directing [Judge Delaney] to rescind [his] orders of April 21, 2010, nunc pro tunc to April 19, 2010."

Analysis

Mootness

[¶6.] Judge Delaney initially argues that the Media's claims are moot because the Media had "a plain, speedy, and adequate remedy at law" in the form of a direct appeal. The Media initially filed both a notice of appeal and this writ to ensure that it complied with Court rules. The Media dismissed the direct appeal after we granted the alternative writ. By accepting original jurisdiction and granting the alternative writ, we acknowledged that seeking an alternative writ was the appropriate procedure.

[¶7.] Judge Delaney also claims the Media's issues are moot because the trial has been completed and "there are no further proceedings which the public may attend and the parties are free to speak even if the mandamus relief" is not granted. Accordingly, Judge Delaney concludes that "[m]andamus cannot compel an act - opening the trial to the public, or allowing parties the ability to speak to the media - that [are] no longer possible to perform."

[¶8.] Although Bear County's trial is complete, we will consider this case under an exception to the mootness doctrine because the issue presented is "capable of repetition yet evading review." Sullivan v. Sullivan, 2009 S.D. 27, ¶ 12, 764 N.W.2d 895, 899. This exception applies when: "(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again[.]" Id. (citing Matter of Woodruff, 1997 S.D. 95, ¶ 15, 567 N.W.2d 226, 229 (citing Rapid City Journal v. Cir. Ct of the Seventh Jud. Cir., 283N.W.2d 563, 565-66 (S.D. 1979) (citing Neb. Press Ass'n v. Stuart, 427 U.S. 539, 546, 96 S. Ct. 2791, 2797, 49 L. Ed. 2d 683, 690 (1976)))). Here, the Media's challenge was not fully litigated because Bear Country's action ended before the Media's petition for an alternative writ was granted. See id. Additionally, there is a "reasonable expectation" that the Media will be prevented from attending court proceedings in the future under similar circumstances. See id.¶ 13. We therefore address the issues presented.

Right of Access to Trials

[¶9.] We first address whether the media and public have a qualified right to attend a civil trial and access documents filed with a court. It is established that a right of access to civil court proceedings exists. See Miller, 2000 S.D. 63, ¶ 10, 610 N.W.2d at 82 (recognizing the media and public's equal First Amendment right to attend court proceedings). But whether that right stems from the First Amendment or the common law has not been specifically addressed by this Court. Both the First Amendment and the common law involve a presumption of openness, but the scrutiny required of the trial judge's decision to close the proceedings differs. Under a First Amendment analysis, the presumption of openness can only be overcome with a showing of an "overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise Co. v. Superior Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510, 104 S. Ct. 819, 823, 78 L. Ed. 2d 629 (1984). The common law, on the other hand, balances the competing interests of the parties. With either analysis, we review the trial court's findings of fact under a clearly erroneous standard, its application of the law denovo, and the ultimate decision to close a proceeding for an abuse of discretion. See In the Matter of M.C., 527 N.W.2d 290, 293 (S.D. 1995).²

[¶10.] In applying a First Amendment analysis, the United States Supreme Court held in Richmond Newspapers, Inc. v. Virginia that "the right to attend criminal trials is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated." 448 U.S. 555, 580, 100 S. Ct. 2814, 2829, 65 L. Ed. 2d 973 (1980) (citations and quotations omitted). The Supreme Court in a later case highlighted the value of an open trial as follows:

The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.

Press-Enterprise Co., 464 U.S. at 508, 104 S. Ct. at 823 (citing Richmond Newspapers, Inc., 448 U.S. at 569-71, 100 S. Ct. at 2823-24).

[¶11.] Justification for closing a criminal trial must be "weighty," supported by a compelling interest, and "narrowly tailored." Id. at 509-510, 104 S. Ct. at 824(quoting Globe Newspapers Co. v. Superior Ct., 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982)). The Supreme Court explained:

'[T]he circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.' The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id. at 509-510, 104 S. Ct. at 824 (quoting Globe Newspapers Co., 457 U.S. at 596, 102 S. Ct. at 2620). See also El Vocero de Puerto Rico, et al. v. Puerto Rico et al., 508 U.S. 147, 151, 113 S. Ct. 2004, 2006, 124 L. Ed. 2d 60 (1993). As noted by Justice Brennan, closing a criminal...