STATE of Wisconsin, EX REL., Frank E. STEVENS, III, Petitioner, v. CIRCUIT COURT FOR MANITOWOC COUNTY, The Honorable Fred B. Hazlewood, Circuit Judge, Presiding, and District Attorney For Manitowoc County, Respondents.
No. 87-0203-W
Supreme Court of Wisconsin
Argued September 8, 1987. - Decided November 4, 1987.
239 Wis. 2d 239 | 414 N.W.2d 832
For the respondents there was a response and oral argument by Thomas J. Balistreri, assistant attorney general, with whom on the response was Donald J. Hanaway, attorney general.
DAY, J. This petition for supervisory writ is before us on certification from the court of appeals pursuant to
The facts of this case are not in dispute. The defendant, Frank E. Stevens III, (Defendant) was charged pursuant to
The Defendant argues on appeal that his sixth amendment right to public trial extends to the preliminary examination and that the provision of
The state concedes that a defendant‘s right to public trial is infringed by the mandatory closure
In examining the issues raised by these arguments, we must first determine whether a defendant‘s sixth amendment right to public trial extends to preliminary examinations. This is a question of law, since the facts are not in dispute, and this court need not defer to the trial court‘s reasoning. Kramer v. Horton, 128 Wis. 2d 404, 414, 383 N.W. 2d 54, 58, cert. denied, 479 U.S. 918, 107 S. Ct. 324 (1986).
The sixth amendment of the
In State ex rel. Kennon v. Hanley, 249 Wis. 399, 401, 24 N.W.2d 683, 684 (1946), this court specifically upheld the closure of a preliminary examination in a sexual assault case. The Kennon court concluded that preliminary examinations are not trials and, therefore, no right of “public trial” attaches to these proceedings. Accord State ex rel. Offerdahl v. State, 17 Wis. 2d 334, 336, 116 N.W.2d 809, 810 (1962). Since that time, however, a presumption of “openness” or a public attendance right under
Several recent United States Supreme Court cases contradict the analysis used in Kennon, adopting a position more closely aligned with later Wisconsin cases which support the presumption of openness. The Supreme Court held in Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), that a trial judge improperly closed hearings on the preliminary motions and trial of a sexual assault case, and found that the Massachusetts statute, which mandated closure under all circumstances during the testimony of a minor victim in a sexual assault trial, was unconstitutional. The Court acknowledged a compelling state interest in safeguarding the physical and psychological well-being of a minor, but found that a case-by-case assessment of closure by the circuit court would best protect both the needs of the victim and the constitutional rights of others to access. Among the factors the Court required the trial judge to examine in making a “narrowly tailored” closure were the minor victim‘s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives. Id. at 607-09.
Globe did not specifically address preliminary examinations and the claim made in that action was brought by members of the news media on first amendment grounds. In Waller v. Georgia, 467 U.S. 39 (1984), however, the Supreme Court held that arbitrary closure of a suppression hearing over the objection of the defendant violated that defendant‘s sixth and fourteenth amendment right to public trial. The Court reasoned that the aims and interests protected by requiring a trial to be public were no less pressing
the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. Waller, 467 U.S. at 48.
Finally, Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 106 S. Ct. 2735 (1986) (Press-Enterprise II), reversed an order closing a preliminary hearing of a murder case because the trial court failed to consider whether alternatives short of closure would have protected the defendant‘s constitutional rights. The Court stated that the closure issue “cannot be resolved solely on the label we give an event, i.e., ‘trial’ or otherwise, particularly where the preliminary hearing functions much like a full scale trial.” Id. at 2740. The Court reiterated that the presumption of access may be overcome “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to
The defendant here argues that the reasoning of Waller, though it examined a suppression hearing, applies with equal force when considering a sixth amendment public trial right as it pertains to preliminary examinations. In Waller, the Court stated:
“The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions” .... ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.... These aims and interests are no less pressing in a hearing to suppress wrongfully seized evidence. ... In addition, a suppression hearing often resembles a bench trial: witnesses are sworn and testify, and of course counsel argue their positions. The outcome frequently depends on a resolution of factual matters. Waller, 467 U.S. at 46-7 (citations omitted).
Based on the Supreme Court‘s analysis in Press-Enterprise II, which specifically addressed closure of a preliminary hearing, and the Court‘s rationale in extending the sixth amendment public trial right in Waller, we hold that a preliminary examination is sufficiently analogous in the purposes and aims which support the public trial requirement that a qualified
Our ruling that the sixth amendment public trial right extends to preliminary examinations as it pertains to closure issues is not intended to extend any other rights a defendant may have at trial to the statutorily-created preliminary examination. Cases such as State ex rel. Huser v. Rasmussen, 84 Wis. 2d 600, 613-15, 267 N.W.2d 285, 292-93 (1978) (defendant has no right to cross examine a witness for general trustworthiness at preliminary hearing), State v. Marshall, 92 Wis. 2d 101, 115, 284 N.W.2d 592, 598 (1979) (defendant not allowed to introduce impeachment evidence), and State ex rel. Welch v. Waukesha County, 52 Wis. 2d 221, 189 N.W.2d 417 (1971) (where defendant is indicted by grand jury, no right to preliminary hearing exists)5 are, therefore, not affected by this holding.
We must next examine whether the hearing in this case was “closed” by the court‘s order thereby infringing upon the defendant‘s sixth amendment
The United States Supreme Court has not specifically addressed the issue of whether the news media may substitute for the general public at a judicial proceeding. It has held that newspaper, television and radio reporters are all entitled to the same right of access as the general public to court hearings. Estes v. Texas, 381 U.S. 532, 540 (1965); see also Pell v. Procunier, 417 U.S. 817, 834 (1974) (no constitutional duty of the government to give the press special access to information not shared by members of the public generally); accord State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis. 2d 220, 241, 340 N.W.2d 460, 467-68 (1983) (standing of reporters to attend a voir dire hearing not a special right but the same right as that of the public).
Under the plain language of
Having the same right of access as the public is, however, not synonymous with being representative of or a substitute for the general public. In first amendment actions, though it was members of the media who sued as plaintiffs, the Supreme Court
Though the press may serve an important role in allowing a circuit court to mitigate or narrowly tailor a closure order, we find that only allowing news media attendance does not serve as an adequate replacement for the right of the general public to be present at a hearing. The order of the circuit court in this case created a closure sufficient to allow the defendant to invoke the protections of his sixth amendment public trial right.6
We first examine the constitutionality of the statute which the circuit court relied upon as the basis of its order. The constitutionality of a statute is a question of law which this court reviews de novo. Bachowski v. Salamone, 139 Wis. 2d 397, 404, 407 N.W.2d 533, 536 (1987).
In analyzing a statute‘s constitutionality, “[e]very presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment‘s constitutionality, it must be resolved in favor of constitutionality.” Thus “[i]f there is any reasonable basis upon which the legislation may constitutionally rest, the court must assume that the legislature had such fact in mind and passed the act pursuant thereto.” Chappy v. Labor & Indus. Review Comm‘n., 136 Wis. 2d 172, 185, 401 N.W.2d 568, 574 (1987) (citations omitted).
We agree with the state‘s and defendant‘s analysis of federal case law and their conclusion that the portion of
When a complainant seeks closure under
At motions on the state‘s closure order the circuit court in this case stated:
One, I would grant the State‘s request, assuming that to be at the request of the juvenile victim and authorize pursuant to Wisconsin statute the closed proceedings and the closure of the proceedings will not pertain to accredited members of the media
who desire to disseminate the proceedings and report the proceedings without disclosing the principal, in particular the juvenile, to the public but to report that the courts are operating hopefully on a regular basis and an open basis. I think, however, some consideration need be given to the victim and certainly at the preliminary stages I would allow the proceedings to be closed to the members of the public but not to news representatives and, therefore, I would respectively [sic] deny the motion to Mr. Glynn [defendant‘s counsel] to close [sic] the preliminary examination. I believe that an accommodation can be made to the principle of open courts, the defendant‘s understandable desire to have the proceedings as regular as possible and the needs and concerns of the State and the juvenile victim and I think that an order closing the proceedings to the general public but leaving them open to the members of the news media preserves at least at the preliminary stages the defendant‘s right to the extent reasonably possible giving, I feel, fair consideration to the needs of the victim and the concerns for the victim about these very emotional matters. Motions Transcript at 4.
What was lacking in the circuit court‘s analysis was a factual basis, utilizing factors such as those presented in Globe, to support its order. The court further failed to articulate why inclusion of the press would not infringe upon the compelling interest advanced by the state while inclusion of members of the general public would. We, therefore, vacate this order with instructions that the circuit court hold a hearing on the state‘s request for closure and reach a conclusion based on the exercise of its discretion prior
By the Court.—The petition for supervisory writ is granted. The order of the circuit court is vacated and the cause remanded for further proceedings.
LOUIS J. CECI, J. (concurring). I join the opinion of the majority and agree with the reasoning used by the court to reach its result in this case.
I write separately to point out that in its certification request, the court of appeals, in a footnote, found it necessary to urge this court to “expedite” our consideration of this certification request. (Certification, p. 11, n. 4.)
The petition for a supervisory writ was filed in the court of appeals on February 6, 1987. Almost two months later, the court of appeals filed its certification request with this court. This two-month delay was the responsibility of the court of appeals. By requesting that this certification be “expedited,” the court of appeals implies that in the past this court has not disposed of certification requests in a speedy manner. That is simply not true.
Notes
970.03 Preliminary examination. ... (4) If the defendant is accused of a crime under s. 940.225, the judge shall, at the request of the complaining witness, exclude from the hearing all persons not officers of the court, members of the witness‘s or defendant‘s families or others deemed by the court to be supportive of them, or otherwise required to attend. The judge may exclude all such persons from the hearing in any case where the defendant is accused of a crime under s. 940.225 or a crime against chastity, morality or decency.
The complainant in this action was under the age of twelve at the time of the alleged assault.940.225 (1) First degree sexual assault. Whoever does any of the following is guilty of a Class B felony: ... (d) Has sexual contact or sexual intercourse with a person 12 years of age or younger.
The State having moved the Court pursuant to Section 970.03(4) Wis. Stats, and upon the request of the complaining witness in the above case requesting exclusion of the public during the preliminary examination of this matter, and the Court having heard arguments on the motion:
IT IS HEREBY ORDERED that the preliminary examination to be held in this matter on February 12, 1987 is closed to the general public.
IT IS FURTHER ORDERED that this does not apply to members of the news media.
Rights of accused. Section 7. In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.
Indictment by grand jury. Upon indictment by a grand jury a complaint shall be issued, as provided by s. 968.02, upon the person named in the indictment and the person shall be entitled to a preliminary hearing under s. 970.03, and all proceedings thereafter shall be the same as if the person had been initially charged under s. 968.02 and had not been indicted by a grand jury.
Other jurisdictions have concluded that denying public admission infringes upon the defendant‘s right to a public trial, even where the press is allowed to attend a hearing, absent a narrow tailoring of the court‘s closure order to meet specific exigencies. See, e.g., Davis v. United States, 247 F. 394 (8th Cir. 1917) (direction to “clear the courtroom,” including exclusion of decorous spectators, though newspaper reporters were allowed to remain, violated defendant‘s sixth amendment right); United States v. Sielaff, 561 F.2d 691 (7th Cir.), cert. denied, 434 U.S. 1076 (1977) (trial court acted within scope necessary to serve legitimate interest in excluding curiosity seekers and those only interested in case progress and witness testimony, but allowing press and other members of public with substantial interest in knowing what transpired to attend); State ex rel. Smith v. District Court, 201 Mont. 376, 387-88 n. 1, 654 P.2d 982, 987 n. 1 (1982) (adopts presumption, under American Bar Association Standards for Criminal Justice (2d ed. 1978), that pretrial proceedings shall be “open to the public, including representatives of the news media” unless clear and present danger to fairness of trial exists); State v. Schmit, 273 Minn. 78, 83-84, 139 N.W.2d 800, 804-05 (1966) (all spectators may not be indiscriminately excluded during entire trial solely because of the obscene nature of the crime and of the testimony likely to be presented); Thompson v. People, 156 Colo. 416, 399 P.2d 776 (1965) (defendant in rape case was denied right to public trial where spectators, including defendant‘s friends but not including press, court officials and parties’ relatives, were excluded).