People v. Sledge

312 Mich.App. 516

879 N.W.2d 884

PEOPLE

v.SLEDGE.

Docket No. 324680.

Court of Appeals of Michigan.

Submitted Sept. 10, 2015, at Detroit.

Decided Oct. 1, 2015, at 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Timothy A. Baughman, and Robert A. Moran and James Gonzales, Assistant Prosecuting Attorneys, for the people.

Gurewitz & Raben, PLC, Detroit (by Harold Gurewitz ), for Carla Sledge.

James C. Thomas, for Steven M. Collins.

Herschel P. Fink, for intervenor Detroit Free Press, Inc.

Before: GADOLA, P.J., and JANSEN and BECKERING, JJ.

JANSEN, J.

In Docket Nos. 324680 and 324681, intervenor, the Detroit Free Press, Inc. (Free Press), appeals by leave granted the trial court's order denying its motion to vacate the order precluding “all potential trial participants” in the cases pending against defendants Carla Sledge and Steven M. Collins from commenting to the media about the case (gag order). We reverse the trial court's denial of the Free Press's motion to vacate the gag order, and we vacate the gag order.

I. FACTS AND PROCEDURAL HISTORY

The Wayne County Jail Project, a 2010 project budgeted at $300 million to construct a jail in downtown Detroit, came to a halt when construction was only about a quarter complete because of approximately $100 million in cost overruns. The failure of the project, in spite of the fact that $220 million of the money budgeted for the project was spent, has been the subject of public and media scrutiny.¹ The Free Press is a newspaper interested in publishing articles regarding the criminal charges stemming from the failed jail project. On September 12, 2014, defendant Sledge, the former Wayne County Chief Financial Officer, and defendant Collins, the Assistant Wayne County Corporation Counsel, were each indicted on two counts of a common-law offense (misconduct in office), MCL 750.505, and two counts of willful neglect of duty, MCL 750.478, stemming from the Wayne County Jail Project.

The indictment alleged that defendants intentionally misled the Wayne County Commission and the Wayne County Building Authority regarding “the cost(s) and/ or financial status of the Wayne County Consolidated Jail Project,” and willfully neglected to fully and honestly inform the Wayne County Commission and the Wayne County Building Authority regarding the project.² On September 30, 2014, the trial court, sua sponte, sealed the court record and entered an order, which stated:

IT IS HEREBY ORDERED that all potential trial participants shall be prohibited from making any extra judicial [sic] statements regarding this case to members of the media or to any individual(s) for the purpose of for [sic] disseminating by public communications.

IT IS FURTHER ORDERED that potential trial participants shall include all attorneys for the prosecution and defense, the defendant and any agent acting on behalf of the attorneys ordered.

The court did not hold a hearing or make any findings of fact when it sealed the record and entered the order.

On October 6, 2014, the Free Press's attorney sent a letter to the trial court, urging the court to vacate the gag order prohibiting all potential trial participants from making extrajudicial statements to the media regarding the case. The letter argued that the great public interest in the case outweighed any prejudice to defendants' right to a fair trial. The letter cited several cases in support of the request. On October 14, 2014, the Free Press filed formal motions to intervene in the case and to vacate the gag order. The Free Press requested leave to intervene “pursuant to MCR 8.116(D) and applicable United States Supreme Court precedents giving the media standing to oppose restraints on its ability to gather news....” In an accompanying brief, the Free Press argued that the gag order was overbroad and constituted an unconstitutional prior restraint on speech.

On October 31, 2014, the trial court held a hearing on the Free Press's motions to intervene and to vacate the gag order. The attorney for the Free Press emphasized that the gag order was overbroad and covered “anybody potentially involved” in the case. He argued that the gag order constituted a prior restraint on the media's ability to report on the news and that the gag order was entered without a request from one of the parties and without findings by the court. He stated that the court file should be unsealed. Sledge's attorney stated that he appreciated the trial court's efforts to ensure a fair trial, but he could not disagree with the legal authority cited by the Free Press. He noted that he would leave the issue up to the trial court's discretion and did not specifically request that the court uphold the gag order. Counsel for Collins stated that the court entered the gag order in order to protect his client's right to a fair trial and noted that his client had “a right to a jury that is untouched by bias,” but he did not specifically request that the court uphold the gag order. The prosecutor also agreed that the trial court issued the gag order to protect defendants' right to a fair trial, but did not request that the trial court uphold the gag order.

Ruling from the bench, the trial court granted the Free Press's motion to unseal the record, but the court denied the Free Press's motion to vacate the gag order. The trial judge questioned whether the Free Press had standing to challenge the gag order, but ultimately found that the Free Press had standing. However, the judge noted that the Free Press had access to the court proceedings and that the gag order was not directed at the media. The judge reasoned that the grand jury process is a secretive process and does not involve safeguards to ensure that the information presented is properly tested and that the people against whom the grand jury witnesses testified will not find out what the witnesses said. The judge also noted that she had a duty to ensure that the right to a fair trial was not prejudiced and reasoned that pretrial publicity would deny each defendant the right to a fair trial. The judge stated that she sealed the court file because she believed that the grand jury transcripts would be placed in the file. The trial judge stated, “This is the Court's first impression with that of a grand jury transcript or testimony. I didn't know how the process went.” The prosecutor explained that the grand jury material would not be part of the official court file. The court then determined that it would unseal the court file.

In an opinion and order on the Free Press's motion to vacate the gag order issued on the same day, the trial court determined that the Free Press had standing to intervene in the action as a recipient of speech. The court further determined that there was not a prior restraint on speech because the order did not prevent the Free Press from speaking or from reporting on the proceedings. To justify the gag order, the trial court emphasized that the grand jury process involved secrecy and that the participants in a grand jury proceeding were often “forbidden” to disclose details of the proceeding. The trial court stated that it had “the right to balance the government's interest in secrecy against public disclosure,” and that disclosure could “have a chilling effect on those who have testified to be frank and candid.” The court further noted that disclosure could make it difficult to impanel a fair and impartial jury. Finally, the court reasoned that pretrial publicity was reasonably likely to deprive defendants of a fair trial. Thus, the court ruled that the gag order was constitutional. Also, on the same day, the trial court issued an order unsealing the record.

On November 19, 2014, the Free Press filed an application for leave to appeal in this Court the trial court's decision on the motion to vacate the gag order. On December 4, 2014, in two identical orders, this Court denied the Free Press's application for leave to appeal, stating in part:

The gag order placed no direct restraint of any kind on the Free Press and, therefore, the Free Press cannot claim that the gag order is an impermissible prior restraint. Nevertheless, the gag order issued here, and in particular, the extension of the order to “... all potential trial participants ...” conceivably implicates First Amendment rights. However, the Free Press has not identified any willing speaker who feels restrained as a result of this order. Thus, this application is a mere generalized challenge to a First Amendment interest.

See People v. Sledge, unpublished order of the Court of Appeals, entered December 4, 2014 (Docket No. 324680); People v. Collins, unpublished order of the Court of Appeals, entered December 4, 2014 (Docket No. 324681). In two identical orders dated January 12, 2015, this Court also denied the Free Press's motion for reconsideration of the orders denying the Free Press's application for leave to appeal. See People v. Sledge, unpublished order of the Court of Appeals, entered January 12, 2015 (Docket No. 324680); People v. Collins, unpublished order of the Court of Appeals, entered January 12, 2015 (Docket No. 324681). On February 23, 2015, the Free Press filed an emergency application for leave to appeal in the Michigan Supreme Court. On March 27, 2015, the Michigan Supreme Court vacated this Court's orders, and in lieu of granting leave to appeal, remanded the case to this Court pursuant to MCR 7.302(H)(1) for consideration as on leave granted. People v. Sledge, 497 Mich. 979, 865 N.W.2d 9 (2015). Shortly after the remand, this Court consolidated Docket Nos. 324680 and 324681 for review on appeal. See People v. Sledge, unpublished order of the Court of Appeals, entered April 1, 2015 (Docket Nos. 324680 and 324681).

II. FIRST AMENDMENT FREEDOMS

The Free Press argues that the gag order constituted an unconstitutional prior restraint on the freedom of speech and the freedom of the press guaranteed by the First Amendment. We agree.

We...