Jack DOE 1, an individual proceeding under a fictitious name; Jack Doe 2, an individual proceeding under a fictitious name; Jack Doe 3, an individual proceeding under a fictitious name; Jack Doe 4, an individual proceeding under a fictitious name; Jack Doe 5, an individual proceeding under a fictitious name; Jack Doe 6, an individual proceeding under a fictitious name, Plaintiffs, v. CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a foreign corporation solely registered to do business in the State of Oregon; and Corporation of the President of the Church of Jesus Christ of Latter-Day Saints and Successors a foreign corporation solely registered to do business in the State of Oregon, Defendants, and THE BOY SCOUTS OF AMERICA, a congressionally chartered corporation, authorized to do business in Oregon; and Cascade Pacific Council, Boy Scouts of America, an Oregon non-profit corporation, Defendants-Adverse Parties, and THE ASSOCIATED PRESS, The Oregonian, Oregon Public Broadcasting, The New York Times, KGW, and Courthouse News Service, Intervenors-Relators. (Control)
S058601 (Control); S058634
Supreme Court of Oregon
Argued and submitted January 11, 2011, alternative writs of mandamus dismissed June 14, 2012
280 P.3d 377
DURHAM, J.
Jack DOE 1, an individual proceeding under a fictitious name; Jack Doe 2, an individual proceeding under a fictitious name; Jack Doe 3, an individual proceeding under a fictitious name; Jack Doe 4, an individual proceeding under a fictitious name; Jack Doe 5, an individual proceeding under a fictitious name; Jack Doe 6, an individual proceeding under a fictitious name, Plaintiffs, v. CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a foreign corporation solely registered to do business in the State of Oregon; and Corporation of the President of the Church of Jesus Christ of Latter-Day Saints and Successors a foreign corporation solely registered to do business in the State of Oregon, Defendants, and THE BOY SCOUTS OF AMERICA, a congressionally chartered corporation, authorized to do business in Oregon; and Cascade Pacific Council, Boy Scouts of America, an Oregon non-profit corporation, Defendants-Adverse Parties, and THE ASSOCIATED PRESS, The Oregonian, Oregon Public Broadcasting, The New York Times,
S058601 (Control)
JACK DOE 1, an individual proceeding under a fictitious name; JACK DOE 2, an individual proceeding under a fictitious name; JACK DOE 3, an individual proceeding under a fictitious name; JACK DOE 4, an individual proceeding under a fictitious name; JACK DOE 5, an individual proceeding under a fictitious name; JACK DOE 6, an individual proceeding under a fictitious name, Plaintiffs, v. CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a foreign corporation solely registered to do business in the State of Oregon; Corporation of the President of the Church of Jesus Christ of Latter-Day Saints and Successors, a foreign corporation solely registered to do business in the State of Oregon; and Cascade Pacific Council, Boy Scouts of America, an Oregon non-profit corporation Defendants, and THE BOY SCOUTS OF AMERICA, a congressionally chartered corporation, authorized to do business in Oregon, Defendant-Relator, and THE ASSOCIATED PRESS, The Oregonian,
S058634
Charles F. Hinkle, Stoel Rives LLP, Portland, argued the cause and filed the briefs for Intervenors-Relators/ Intervenors-Adverse Parties The Associated Press, The Oregonian, Oregon Public Broadcasting, The New York Times, KGW, and Courthouse News Service.
Robert L. Aldisert, Perkins Coie LLP, Portland, argued the cause and filed the briefs for Defendants-Relators/Defendants-Adverse Parties The Boy Scouts of America.
Lori Irish Bauman, Ater Wynne LLP, Portland, filed the brief for amicus curiae TechAmerica. With her on the brief was Frank V. Langfitt.
Denise G. Fjordbeck, Attorney-in-Charge, Salem, filed the brief for amicus curiae State of Oregon.
DURHAM, J.
These opposing petitions for writs of mandamus challenge a trial court order allowing the release, to the press and to the public, of redacted versions of 1,247 “ineligible volunteer” files belonging to defendant Boy Scouts of America (BSA). Those files contain information regarding child sexual abuse complaints against BSA volunteers from 1965 to 1985. The trial court had admitted the files, and BSA‘s actions in response to those complaints, into evidence in the jury trial of the matter below. To decide these mandamus petitions, we must examine the contours of the “open courts” clause of
“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay[.]”
For the following reasons, we dismiss both writs.
These mandamus petitions arise out of a tort action brought against the Church of Jesus Christ of Latter-Day Saints and the BSA by six former Boy Scouts who alleged sexual abuse by their scout leaders.1 One of those former scouts, Lewis, severed his claims from the other plaintiffs’ claims and the matter proceeded to trial. During pretrial discovery, plaintiffs requested that BSA produce its ineligible volunteer files. After BSA objected, plaintiffs moved to compel production of the files. The trial court granted plaintiffs’ motion to compel and ordered BSA to produce all unredacted ineligible volunteer files covering the period 1965 to 1985, subject to a protective order. The protective order required the parties to keep the files confidential and prohibited distribution of the files. The order also required that all copies be returned to BSA within 90 days after a judgment or order terminating the action.
The trial court conducted a bifurcated trial of Lewis‘s claims. During phase one, the jury heard evidence related to liability, compensatory damages, and liability for punitive damages. During that phase, Lewis offered
Following the verdict, plaintiffs moved to vacate the protective order so that they could release the ineligible volunteer files to the public. Previously six media entities3 had moved to intervene and also asked the trial court to release the trial exhibits, including the 1,247 ineligible volunteer files, for immediate public access. The trial court heard those motions together.
In an opinion and order dated June 18, 2010, the trial court granted plaintiffs’ motion to vacate the protective order and granted intervenors’ motion to release the trial exhibits, subject to two conditions: (1) “redaction of the names of the victims and those who reported alleged abuse“; and (2) a “stay in the effectiveness of this Order pending appellate review.” The trial court concluded that
The trial court also addressed defendants’ separate argument that, if
The court considered an array of factors that the parties offered to influence the court‘s discretionary choices. The court stated:
“Defendants cite the following factors that support Defendants’ claim that the Court should exercise its discretion to deny the motions: Prejudice to Defendants in terms of the opportunity of Defendants to receive a fair trial of the remaining cases; prejudice to third parties, in particular victims of sexual abuse who wish to remain anonymous; prejudice to alleged perpetrators considering that the exhibits do not exist only on account of criminal convictions or other adjudications of responsibility by the individuals who are the subject of the files; the lack of prejudice to the remaining Plaintiffs; and the salutary effect assurances of confidentiality have on the willingness of individuals to report alleged abuse.
“Plaintiffs and Amici respond that lifting the veil of secrecy on child sexual abuse is the primary method by which the child sexual abuse problem in our society will be reduced, minimized, or hopefully eradicated. Plaintiffs and Amici support redaction of the names of the alleged victims. Plaintiffs also support the redaction of the names of those who reported the alleged abuse. Intervenors claim the right to the unredacted files in the form they were received into evidence.”
“Considering the factors noted above, the Court concludes that if
Article I, Section 10 of the Oregon Constitution does not require the Court to grant the motions, the Court would nevertheless exercise its discretion to do so, in a manner as qualified below. I come to this conclusion considering fully and carefully the claims of Defendants and the assertions of Plaintiffs and Amici, cited above.“Despite the Court‘s conclusions noted above about the Constitutional requirements, I conclude, as urged by Plaintiffs and to some degree by Amici, that in the exercise of the Court‘s inherent power to control its proceedings, the protection of alleged child sexual abuse victims and the reasonable expectations of those who reported alleged child [sexual] abuse require that any release of these files be a qualified release, that is, with the names of all victims and the names of those who reported abuse redacted.”
The court stayed the effectiveness of its order so that the status quo would be maintained while the parties and intervenors sought relief in this court.
Soon thereafter, intervenors filed a mandamus petition in this court, asking this court to order the trial court immediately to release the ineligible volunteer files, in their unredacted form, for public inspection. BSA opposed intervenors’ petition and filed its own petition challenging the trial court‘s decision to vacate the protective order and release the ineligible volunteer files at all. The matters were consolidated, and this court issued alternative writs of mandamus in both matters.
Intervenors argue that the trial court‘s decision to redact the ineligible volunteer files and to delay the files’ release until after appellate review violated
BSA contends, in its own mandamus petition, that the trial court erred in vacating the protective order because
Mandamus is an extraordinary remedy, used to enforce a clear legal right. State v. Burleson, 342 Or 697, 701, 160 P3d 624 (2007). A writ of mandamus “shall not control judicial discretion.”
We address BSA‘s mandamus petition first. BSA contends that
As we discuss later in this opinion, we agree that
To begin, we find nothing in
BSA nevertheless argues that the trial court‘s order was an “abdication of its duty to administer justice and contrary to reason.” BSA asserts that the trial court failed to give reasons for its decision and disregarded the
We now turn to intervenors’ mandamus petition. As stated earlier, intervenors argue that
We interpret a constitutional provision by examining the text of the provision, the historical circumstances leading to the creation and adoption of the provision, and the applicable case law concerning the provision. Clarke v. OHSU, 343 Or 581, 590, 175 P3d 418 (2007) (citing Priest, 314 Or at 415-16). In that process of interpretation, we attempt to understand the provision, if possible, as the framers would have understood it. We then apply the constitutional principles that we discern from our inquiry to modern circumstances as they arise. See Smothers v. Gresham Transfer, Inc., 332 Or 83, 90-91, 23 P3d 333 (2001).
“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”
Within
The first phrase of the open courts clause states: “No court shall be secret.” The term “court” appears in several passages of the Oregon Constitution, either by itself, as in
Despite the slight variations in usages noted above, the term “court” in the Oregon Constitution refers to a legally established institution designed and authorized to administer justice. A dictionary, in wide use in 1859, confirms that the framers likely understood a “court” to consist of both the place where that institution administers justice as well as the judges and other persons who are charged by law with the administration of justice. Noah Webster, 1 An American Dictionary of the English Language (1828) (reprint 1970) defines “court,” as pertinent, in this way:
“4. The hall, chamber or place where justice is administered. *** 6. The persons or judges assembled for hearing and deciding causes, civil, criminal, military, naval or ecclesiastical; as a court of law ***. Hence, 7. Any jurisdiction, civil, military or ecclesiastical.”
(Emphasis in original.)
A legal dictionary, also in use contemporaneously with adoption of the Oregon Constitution, defines “court” by drawing attention to the importance of the presence of judges and their subordinate clerical staff in the place identified as a court, as well as their performance of the functions of a court in the administration of justice. According to John Bouvier, 1 A Law Dictionary Adapted to the Constitution and Laws of the United States of America 246-47 (1839) (2d reprint 2000):
“[A] court is an incorporeal political being, which requires for its existence, the presence of judges, or a competent number of them, and a clerk or prothonotary, at the time during which, and at the place where it is by law authorised to be held; and the performance of some public act, indicative of a design to perform the functions of a court. In another sense, the judges, clerk or prothonotary,
counsellors and ministerial officers, are said to constitute the court. According to Lord Coke, a court is a place where justice is judicially administered. The judges alone, are also called the court[.]”
(Citations omitted.)
Those definitions indicate that, within the meaning of
We consider the meanings of the constitutional terms “secret” and “openly” together, because they address the same concept. A contemporaneous standard dictionary defines the term “secret” as “[p]roperly, separate; hence, hid; concealed from the notice or knowledge of all persons except the individual or individuals concerned” and “unseen; private; secluded; being in retirement.” Webster, 2 An American Dictionary at 66. Not surprisingly, the dictionary defines “openly” as the opposite of secret: “[p]ublicly; not in private; without secrecy.” Id. at 26. Those definitions, considered in the context of Oregon‘s judicial system, confirm that Oregon‘s framers sought to require the courts to conduct the business of administering justice in public—that is, in a manner that permits public scrutiny of the court‘s work in determining legal controversies. See David Schuman, Oregon‘s Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or L Rev 35, 38 (1986) (hereafter Schuman) (“Oregon evidently took ‘open’ to mean ‘non-secret’ or ‘accessible to scrutiny,’ instead of ‘non-exclusive’ or ‘accessible to all regardless of ability to pay.‘“).
We turn next to the historical circumstances surrounding the adoption of the open courts clause. The probable source for the open courts clause is Chapter 40 of the Magna Carta. See id. at 301 n 3 (“The probable genesis of section 10 was Article 40 of the Magna Carta[.]” (citation omitted)). Translated, Chapter 40 provides, “To no one will we sell, to no one will we deny, or delay, right or justice.” Id. (citation omitted). In his Second Institutes, Lord Coke commented on and interpreted Chapter 29 of the Magna Carta of 1225, which previously had appeared as Chapters 39 and 40 of the Magna Carta of 1215. Smothers, 332 Or at 94-95. Coke‘s commentary provided the basis for the open courts clause of many state constitutions, including the Oregon Constitution. O‘Leary, 303 Or at 301 n 3. Lord Coke wrote:
“And therefore every subject of this realme [sic], for injury done to him in [goods, lands, or person], by any other Subject, be he ecclesiastical, or temporall [sic], free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice and
right for the injury done him, freely without sale, fully without any deniall [sic], and speedily without delay.”
Edward Coke, 1 The Second Part of the Institutes of the Laws of England, 55 (1797). Lord Coke‘s commentary on Chapter 29 was apparently motivated by a desire to combat judicial abuses, such as the sale, delay, and denial of common-law justice through corruption and interference by the King or his ministers. Coke advocated that each person have access to courts to obtain a remedy by due course of law, with assurance that the king would not sell, deny, or delay justice. Smothers, 332 Or at 96-97.
The desire for judicial impartiality and independence also apparently motivated the early American adoption of open courts clauses, which were based on Lord Coke‘s interpretation. Because Coke‘s concerns focused on access to courts, the mandate that courts be “open” in early American state constitutions generally may have referred to access to courts by litigants, not necessarily to a court‘s secrecy or its susceptibility to public scrutiny, as it has been understood more recently. O‘Leary, 303 Or at 301 n 3; Schuman, 65 Or L Rev at 38. One early American constitution, the Pennsylvania Constitution, echoed Coke‘s phrasing and provided, “That all courts shall be open, and every man, for an injury done him in his lands, goods, person, or reputation, shall have remedy by the due course of law, and right and justice administered without sale, denial or delay.”
Indiana adopted similar language in
The historical circumstances that led to the adoption of Oregon‘s open courts provision, like the text of the
In Deiz, a newspaper and its reporter sought court permission to attend a controversial juvenile court proceeding. The trial judge barred the press from the courtroom, relying on a statute that authorized exclusion of the general public from juvenile proceedings unless the judge determined that a particular person had “a proper interest in the case or the work of the court.” 289 Or at 279 (quoting former
This court first concluded that the trial judge had acted within her statutory authority in excluding the press. Id. at 281 The court then turned to
The court in Deiz, however, added that its holding did not create a constitutional right to attend all judicial proceedings:
“One obvious limitation is that jury deliberations and court conferences have been and are held in private. We are of the opinion that despite the absence of any language in
Art I, § 10 expressly excluding jury deliberation from the prohibition against secret deliberations, the tradition that such proceedings be held in private was so long and so well established in 1859 that the tradition should be read into the section. The same is true of conferences of collegial courts.”
Id. at 284 (citations omitted). The court also stated that the trial court retained authority to control access to the courtroom by the press or public to prevent overcrowding or interference with court proceedings. Id. at 285.
In a concurring opinion, Justice Linde drew attention to the importance of public visibility in the administration of justice:
“As the Court‘s opinion sets forth, Oregon‘s Constitution guarantees the open and visible administration of justice, not only honest and complete and timely justice, but justice that can be seen to be so during and after the event.”
Id. at 286 (Linde, J., concurring). Justice Linde noted that the rights of the press and the public under the free expression guarantee in
“plays a different role. It is one of those provisions of the constitution that prescribe how the functions of government shall be conducted. *** Here it is the judicial function, that function which brings the law to bear on individuals and puts the generalities of policy to the test of the concrete case.”
Justice Linde explained that the constitutional requirement of visibility in the administration of justice was important in the context of both civil and criminal justice. Referring to the function of openness in the administration of criminal justice, Justice Linde stated:
“There it serves to assure accountability for the charge not prosecuted, the reduced plea accepted, the evidence used or not used, and particularly to forestall suspicion that political considerations entered a case behind closed doors.”
Id. at 289 (emphasis added).
Finally, Justice Linde rejected the view that the open court guarantee deprived judges of the authority, for good cause, to prevent a particular person from attending a court proceeding:
“It is obvious, for reasons of space alone, that a guarantee of open courts does not guarantee any one person a ‘right’ to be present. Justice is nonetheless openly administered when one or another person is for good cause prevented from attending.”
In State ex rel KOIN-TV v. Olsen, 300 Or 392, 711 P2d 966 (1985), this court addressed whether the operator of a television station was entitled to copy the videotape of a defendant‘s testimony in a civil case. A party played the videotape as evidence before a jury in open court, marked the videotape as an exhibit, and offered it in evidence. The opposing party stated no objection, and the court received the videotape in evidence. Later, the television station sought a copy of the videotape from the court.
“(1) The videotape was not truly an exhibit and had there been objection to its offer in evidence, he would not have admitted it. (2) [Plaintiff‘s] counsel had agreed in advance of taking the testimony by videotape that the tape would not be disseminated outside the courtroom, and the defendants certainly objected to the copying. (3) An exhibit is not public property; it is the property of the owner. (4) To permit the copying for television broadcasting would have a chilling effect on the use of a valuable tool in moving the court‘s docket along. (5) There was no statutory right to copy an exhibit.”
Id. at 409. This court stated that the trial judge‘s reasons “are not sham or frivolous. He was entirely correct in his assertion that the videotape was not truly an exhibit at all.” Id.
The television station commenced a mandamus proceeding in this court, seeking to overturn the trial court‘s refusal to allow the station to copy the videotape. This court began by assuming arguendo that state statutes providing for the inspection and copying of public records did not apply to courts, id. at 400, and proceeded to determine whether the common law recognized a right of access to exhibits such as the videotape. We consider the court‘s discussion of the common law in Olsen in the context of this constitutional challenge to determine whether a claimed common law right to inspect an exhibit was a part of the administration of justice to which
The court in Olsen first considered several federal authorities that distinguished between the court‘s records and files, on the one hand, and trial exhibits, on the other hand. One older case, Ex parte Drawbaugh, 2 App DC 404 (1894), acknowledged a common understanding that the public could inspect the court‘s records and files, according to long-established usage in practice, but that case did not involve the right to copy exhibits. Later federal cases, relying on Drawbaugh, concluded that a common law right to copy exhibits existed, but that that right was not absolute and was subject to the discretion of the court. See
The United States Supreme Court granted certiorari to review that conclusion in Mitchell and stated:
“The few cases that have recognized such a right do agree that the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.”
Nixon v. Warner Communications, Inc., 435 US 589, 599, 98 S Ct 1306, 55 L Ed 2d 570 (1978). The United States Supreme Court then reversed the lower court decision, concluding, for reasons that are less than clear, that the trial court had not abused its discretion in refusing to release the audiotapes to the media. Id. at 608.
In Olsen, after reviewing the foregoing federal authorities, this court acknowledged that the Supreme Court‘s holding in Nixon apparently turned on the discretionary authority of the trial court to control access to audiotapes admitted into evidence. This court further noted that even the dissenting opinion of Justice Stevens in Nixon had agreed that the trial judge‘s decision declining to allow the media to copy audiotape exhibits was subject to reversal only for an abuse of discretion. 300 Or at 405.
This court in Olsen then cited and quoted two decisions from this court that stated that, at common law, only persons who could show a need for the information could assert a common law right to inspect or make copies of public records. Id. at 405-06 (citing MacEwan v. Holm et al, 226 Or 27, 35, 359 P2d 413 (1961); Bend Publishing Co. v. Haner, 118 Or 105, 107, 244 P 868 (1926)). The court in Bend Publishing Co. also concluded that an applicable statute granted the plaintiff a right to inspect and examine the clerk‘s records for a lawful purpose. 118 Or at 109. The Olsen court concluded from those cases that, in view of the
To complete its analysis of the claimed right to copy exhibits, the Olsen court assumed that a common law right existed to copy exhibits received in evidence during the course of a civil trial. As to that assumed right, the court stated:
“We agree with the Nixon decision (and the dissent of Justice Stevens) that the right is not absolute but is subject to the discretion of the trial judge. That being so, in a proceeding in mandamus, we can overrule the trial judge‘s decision only if we find there to have been an abuse of discretion.”
Id. at 406-07 (footnote omitted). The court went on to conclude that the decision to deny a copy of the videotape to the television station was not an abuse of discretion. Id. at 409.
This court‘s discussion in Olsen concerning
“There is not one iota of evidence in this proceeding to support a finding that the trial in which the videotape was used was ‘secret.’ KOIN‘s employees were admitted as were members of the public at large. Justice was administered openly and without purchase.”
Id. at 410. That holding is significant for our purposes in this case, because the Olsen court gave no hint that the constitutional open courts provision granted the television station the right to copy an exhibit that was different from—or broader than—the limited common law right, which the court had discussed earlier, to request a copy of an exhibit subject to the sound discretion of the trial judge.
The final case is O‘Leary, 303 Or 297. In O‘Leary, the plaintiff, Oregonian Publishing Company, filed a declaratory judgment action challenging, under
The court in O‘Leary emphasized that
Deiz and O‘Leary concerned the effect of
Intervenors have taken this court‘s statement in Deiz and O‘Leary out of context. Those statements confirm that a court does not comply with
It cannot be gainsaid that the evidence in a case, consisting of documents and other material property, may play an important, if not decisive, role in shaping the strategy and arguments of the parties and the decisions of the court. As this case illustrates, the public or the media may develop an interest in the content of exhibits or other evidence introduced in a trial. Those circumstances, and other legitimate factors, may lead a court to conclude that granting a request to inspect all or part of the evidence in a case at the close of trial will foster public understanding
We will not attempt to catalogue here the complete range of circumstances in which a court permissibly may exercise its authority to limit the disclosure of exhibits, as discussed above, at the close of a trial. We agree with the trial court, however, that among those circumstances is the need to protect those who have been victims of child sexual abuse and those who have reported suspected child sexual abuse to others with authority to investigate, from embarrassment, retaliation, or other harm.
We have reviewed the trial court‘s decision in this case to redact the names of child abuse victims and persons reporting suspected child abuse from the records that the court ordered to be disclosed to intervenors at the conclusion of the trial. The court, in our view, reasonably exercised its discretion to prevent undue injury and embarrassment to innocent persons that likely would result from public disclosure of the names in the exhibits.9 See Olsen, 300 Or at 406-07 (“[i]n a proceeding in mandamus, we can overrule the trial judge‘s decision only if we find there to have been an abuse of discretion“).
Having concluded that the trial court‘s order requiring the redaction of the names of the victims and the reporters of the alleged abuse prior to public release of the ineligible volunteer file exhibits did not violate
We summarize our conclusions as follows. In regard to the mandamus petition of the BSA, we disagree with the trial court‘s reasoning in deciding that
In regard to the mandamus petition of intervenors, we conclude, as noted, that the open courts provision in
The alternative writs of mandamus are dismissed.