Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, September 26, 2011

South Dakota Supreme Court Rules Media, Public Have Qualified Right To Attend Civil Trials

The South Dakota Supreme Court has ruled that under the First Amendment and at common law the media and public have a qualified right to attend a civil proceeding and a right to examine the records filed with the court, overruling the trial judge who had closed the proceedings and records in response to requests from both parties.

Examining the judge's reasoning under both the First Amendment and the common law, the Court wrote in part:


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. ... But whether that right stems from the First AmendmentI 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." ... 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 de novo, and the ultimate decision to close a proceeding for an abuse of discretion. ...


We acknowledge that Supreme Court cases dealing with the public right of access to trials have been in the context of criminal cases. The Eighth Circuit Court of Appeals, however, applied the same principles to a civil proceeding involving contempt. ...

In summary, the United States Supreme Court has established the media and public's First Amendment right of access to criminal trials. The Eighth Circuit Court of Appeals extended that right to civil contempt trials. And our Court has recognized the right as applied to juvenile trials. The rationale applied in reaching those conclusions is similar and consistent – "openness enhances both the basic fairness of . . . trials and the appearance of fairness so essential to public confidence in the system." ...Logically, the rationale for openness applies equally to civil trials. Open civil trials also protect the integrity of the system and assure the public of the fairness of the courts and our system of justice. We, therefore, hold that the First Amendment affords the media and public a qualified right of access to civil trials in this state.

The Publicker court succinctly set forth the procedure and substance a trial court should follow before closing a trial. The court explained:
Procedurally, a trial court in closing a proceeding must both articulate the countervailing interest it seeks to protect and make findings specific enough that a reviewing court  can determine whether the closure order was properly entered. Substantively, the record before the trial court must demonstrate an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.
...We now adopt the Publicker court's analysis as it comports with, and augments, the review and analysis we applied in In re M. C., 527 N. W. 2d at 293, and In re Hughes County, 452 N. W. 2d at 133. 
Turning to the case before us, we find several problems with the procedure used and decision reached by Judge Delaney. First, Judge Delaney did not correctly apply the First Amendment or the common law presumption of openness. Second, he did not require the parties to show that closure was necessary "to preserve higher values." Third, he failed to "articulate[ ] . . . findings specific enough that a reviewing court c[ould] determine whether the closure order was properly entered." And finally, he failed to narrowly tailor the closure order.
Judge Delaney's initial order excluding the media and public was entered in response to motions from the parties. The order "closed the trial and records of this matter from the public including the press." After the media intervened, Judge Delaney acknowledged that the first order may have been too broad. He then modified his order closing all portions of the trial dealing with "internal financial affairs (General Ledgers, P&L's) of Bear Country and its proprietary data (past and future plans for development, expansion, and the like) and trade secrets (sources of stock, care and operating methods for maintaining the health and exhibition of the stock, etc.)."
In determining Bear Country's value, Judge Delaney found that "a number of exhibits and testimony will directly involve trade secrets, proprietary matters, or the internal financial information of Bear Country." When and how Judge Delaney arrived at that finding is unclear. The record does not indicate that a prior in camera proceeding took place or that the parties had provided him with information to support that finding. Judge Delaney's conclusory findings appear to be based on what he expected the evidence to be. Such conclusory findings are insufficient and prevent meaningful appellate review.

Further, Judge Delaney indicated that he closed the proceedings and records based on SDCL 15-15A-8, which limits public access to certain court records, and SDCL 37-29-5, which limits public access to trade secret information. In reference to these two statutes, Judge Delaney stated: "Upon request of the parties, there seems to be no leeway for the Court but to grant protection for these items." He reasoned that the legislature had "broad power" to close hearings, such as juvenile cases and abuse and neglect cases; "Ergo, the aforementioned statutes should receive the same respect."
Initially, Judge Delaney's reliance on SDCL 15-15A-8 as authority to close the trial is misplaced. SDCA 15-15A-8 does not pertain to trial closure. It pertains only to court records and provides that confidential numbers and financial documents can be excluded from public access.... In addition, the procedure for accessing the confidential information is outlined in SDCL15-15A-10, which allows access "if the court finds that the public interest in granting access or  [**23] the personal interest of the person seeking access outweighs the privacy interests of the parties or dependent children. In granting access the court may impose conditions necessary to balance the interests consistent with this rule." ...While SDCL 115-15A-8 may have allowed Judge Delaney to deny access to certain information in the court records, such as social security numbers or tax identification numbers, his actual closure was much broader and inconsistent with statutory procedure. Based on the broad closure order, we are unable on review to determine if a legitimate reason existed to seal parts of the record.
The trial court's reliance on SDCL 37-29-5 is similarly misplaced. This statute allows trial and record closure to "preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval."  The trial court, however, did not follow the procedure outlined in the statute. The trial court did not conduct an in camera hearing, make specific findings, or narrowly limit closure to the trade secret evidence.... In fact, a review of the record indicates that the evidence at trial involved little, if any, information concerning trade secrets.
Because Judge Delaney erroneously applied the First Amendment's presumption of openness, did not require the parties to show that closure was necessary to preserve higher values, did not articulate specific findings permitting meaningful review, and did not narrowly tailor the closure order, we conclude that he abused his discretion in closing the trial proceedings from the media and public. Accordingly, we agree with the Media that a permanent writ of prohibition be issued, effectively rescinding Judge Delaney's order preventing the Media and public from attending Bear Country's trial proceedings.
The Media also challenges Judge Delaney's participant gag order. Judge Delaney issued a gag order preventing the parties to the Bear Country litigation from discussing "privileged and financial information" and "the trial proceedings in whole."
Although Judge Delaney imposed the gag order to protect "privileged and financial information," in his response brief, he does not detail any basis for imposing a gag order to protect those interests other than "an inherent power, as well as a duty, to conduct a fair and orderly trial [and] . . . [that] the court has the authority to issue such proper orders as may be necessary from time to time." This inherent power, however, has only been discussed in criminal cases in South Dakota. ...Gag orders in criminal cases are usually designed to protect a defendant's right to a fair trial by an impartial jury. ... The Casey family's dispute over Bear Country's value was a civil case tried to the court, not a jury. Therefore it is unclear how prohibiting the trial participants from discussing the case with others would affect Judge Delaney's ability to "conduct a fair and orderly [civil bench] trial." Even though Judge Delaney had the unquestioned authority to ensure a "fair and orderly trial," that standard has no application here. ...
 We are not persuaded that Judge Delaney had statutory or legal authority to issue the gag order under the facts and circumstances of this case. Accordingly, we agree with the Media that a permanent writ of prohibition be issued, effectively rescinding Judge Delaney's order preventing the parties from discussing the case outside of court.

 The Media's request for a permanent writ of prohibition is granted.

The case is Rapid City Press v. Delaney, 2011 S.D. 55, 2011 S.D. LEXIS 113.

| Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference South Dakota Supreme Court Rules Media, Public Have Qualified Right To Attend Civil Trials: