Sustained Outrage

Behind closed courthouse doors in Cabell County

I have to admit that I was pretty stunned when I read this article by Curtis Johnson, my counterpart at the Huntington Herald-Dispatch. In Curtis’ telling, Cabell County Circuit Judge Alfred Ferguson kicked him out of an evidentiary hearing in open court after Curtis (quite correctly) refused to promise not to report on the hearing’s contents.

Here’s what Ferguson said later by way of an explanation, according to the article:

“When I’ve got this hearing scheduled and people there … I just can’t stop the court proceedings for the news media,” he said.

Oh, yes you can, judge. In fact, that’s exactly what you should have done. Or do West Virginia’s Supreme Court of Appeals’ rulings on press access no longer apply?

This isn’t the only time the issue of excluding the press from a criminal hearing has come up recently (cough, Tim Halloran, cough). So here, for the benefit of Ferguson, Halloran and any other judicial officer who want to arbitrarily boot reporters from his or her courtroom without prior warning, is a refresher on West Virginia’s open courts laws.

First, there’s Article III, Section 17 of the West Virginia Constitution:

The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.

In fact, under West Virginia law, even quasi-judicial proceedings, such as disciplinary hearings for doctors and lawyers, are open to the public, thanks in no small part to the crusading efforts of late Gazette publisher W.E. “Ned” Chilton III in Daily Gazette Co.,Inc. v. Committee on Legal Ethics of the West Virginia State Bar (1984) and Daily Gazette Co., Inc. v. West Virginia Board of Medicine (1986).

Of course, the public’s right to attend judicial proceedings is not absolute (family court and juvenile hearings are off-limits, for example), but thankfully, there’s some case law that explains where the boundaries are. Syllabus points 3, 4 and 6 in Garden State Newspapers, Inc. v. Hoke are particularly helpful:

3. “Article III, Section 14 of the West Virginia Constitution, when read in light of our open courts provision in Article III, Section 17, provides a clear basis for finding an independent right in the public and press to attend criminal proceedings. However, there are limits on access by the public and press to a criminal trial, since in this area a long-established constitutional right to a fair trial is accorded the defendant.” Syllabus Point 1, State ex rel. Herald Mail Co. v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544 (1980).

4. The open courts provision of Article III, Section 17 of the Constitution of West Virginia guarantees a qualified constitutional right on the part of the public to attend civil court proceedings.

6. The qualified public right of access to civil court proceedings guaranteed by Article III, Section 17 of the Constitution of West Virginia is not absolute and is subject to reasonable limitations imposed in the interest of the fair administration of justice or other compelling public policies. In performing this analysis, the trial court first must make a careful inquiry and afford all interested parties an opportunity to be heard. The trial court must also consider alternatives to closure. Where the trial court closes proceedings or seals records and documents, it must make specific findings of fact which are detailed enough to allow appellate review to determine whether the proceedings or records are required to be open to the public by virtue of the constitutional presumption of access.

(Emphasis added.) Now, before everyone jumps up and points out that Garden State, as spelled out above, applies to civil cases, this just one of the more recent (1999) in a series of rulings that delineate the access of the press to court proceedings, both criminal and civil. The language above builds on Herald Mail Co. v. Hamilton, a 1980 decision that established the guidelines for criminal proceedings.

Absent a showing of widespread adverse publicity, the trial court should not grant a motion to close the hearing. Even where a clear showing is made as to widespread hostile publicity, this cannot end the inquiry. On a closure motion, the ultimate question is whether, if the pretrial hearing is left open, there is a clear likelihood that there will be irreparable damage to the defendant’s right to a fair trial. . . The record fails to demonstrate facts which would compel a conclusion that widespread publicity prejudicial to the defendant existed. In fact, as earlier noted, both the trial court and defense counsel conceded the absence of prejudicial publicity. In addition, the record does not contain any facts or claim which would demonstrate how the defendant would suffer irreparable damage to his right to a fair trial if the proceedings were open to the public and press.

(Emphasis added.) Moreover, Herald Mail v. Hamilton reminds us why it is so important that the press have access to judicial proceedings:

Once the right in the public to attend the trial is acknowledged, the same right must be accorded members of the press. The press not only constitutes a part of the general public, but it is well established that it operates in a special capacity as an agent or surrogate for the general public in its gathering and dissemination of information. This special status rests on a realistic recognition that it is impossible for any meaningful number of the general public to abandon their daily pursuits to attend trials, and a further acknowledgment that the press has valuable expertise in ferreting out information difficult for the general public to obtain.  

In this light, it’s hard to imagine why Ferguson would allow members of the public to stay but not a reporter.

The framers specifically wanted America’s courts to be open. In West Virginia, courts have carefully extended this principle in ruling after ruling.

I’m sure the judge was trying to protect Steven Foster II’s constitutional right to a fair trial. And one way to do that may be to hold a closed hearing. But, under the laws that he’s sworn to uphold, he can’t abruptly close a hearing just because one side or the other (or both) ask him to. If a member of the press objects, like Curtis did, he’s supposed to hold a separate hearing which explores exactly how Foster’s rights are in danger, and gives the Herald-Dispatch, and anyone else who also objects, an opportunity ahead of time to argue their case for staying.